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The level of ignorance that surrounds the effort to withdraw the UK from membership of the European Union can only be justified by the complexity of the underlying legal situation which is as complicated as any legal situation can be.  It involves the interaction of four different legal orders. National law. EU law. World Trade Organisation law.  General International Law. This situation is at the root of the chaotic negotiations between the British Government and the EU institutions.

The global trade system is governed by the World Trade Organization (1995). There are 164 members of the WTO, including the US, China, India and Japan, all the member states of the EU, and the EU itself. The WTO is a continuation and massive amplification of the General Agreement on Tariffs and Trade (1947) which was part of the economic reorganisation of the world after World War Two, together with the IMF and the World Bank which stabilised the world financial system.

GATT was designed to put an end to one aspect of the economic chaos of the 1920’s and 1930’s. It embodied a policy of ‘free trade’ that had arisen after the Napoleonic wars in Europe and which had given way to chaotic protectionism in the 20th century. The policy of free trade includes an idea that net global wealth will be increased if goods are allowed to move freely from countries where they are best produced (for reasons of climate, resources, skills, or manpower) to countries where they are wanted.

With the dramatic economic development of the US (after the end of the Civil War in 1865), Japan (after the Meiji Revolution of 1868), Germany (after its creation in 1871), and Russia (after the revolution of 1905), the wars of the 20th century were the product of a tectonic clash between frenetically modernising economies and age-old systems of crude diplomacy and war.  The EU is another product of that event.

The WTO system incorporates the GATT Agreement, including the most fundamental principle of free trade known as the ‘most favoured nation’ principle (Article I). You cannot give trade preferences to one country which you do not give to all the other members of the WTO.

The MFN rule would presumably apply to the UK if it were no longer a member of the EU. The EU itself has trade agreements with forty-three other countries. The UK’s position in relation to those countries would have to be renegotiated.  The UK has investment treaties with many other countries.  They are not trade agreements, but give a legal basis to protect mutual capital investments.  They would presumably be affected by UK withdrawal.

The EU has concluded more than three hundred international agreements. The UK and the EU are separately parties to the UN Law of the Sea Convention, giving effect to their respective responsibilities in the field.  There are hundreds of other intergovernmental organisations with decision-making powers.  For example: UN Law of the Sea Tribunal; International Centre for the Settlement of Investment Disputes; Interpol; World Health Organization.  158,000 treaties have been registered with the UN since 1946.  Such is the ‘sovereignty’ of states.  Making a treaty is a sovereign act.   Every treaty is a limitation of sovereignty.  Self-interest chooses common interest.

The original WTO system consists of thousands of pages of legal texts, to which have been added many further international agreements, countless further texts produced by its governing bodies, and very many decisions of its quasi-judicial dispute-resolution system which can lead to a decision ordering a member state to cease a practice contravening WTO law – analogous to the role of the European Court of Justice. Why this monstrous complexity of the WTO system?

The problem is that, in an immensely dynamic global economy, the rules of free trade are extremely difficult to enforce.  When traditional protectionism (customs duties and quotas) is removed, there remain countless other ways of directly or indirectly restricting imports and distorting world trade, invented by the fertile intelligence of civil servants under the influence of ruthless industrial and commercial enterprises.

Dumping (exporting a product at an unnaturally low price that undercuts the same product made in the importing country). Government assistance to national industries, including tax breaks. Above all, so-called non-tariff barriers to trade.

There is a mass of national law governing trade and industry and commerce. In the public interest, you may have laws prohibiting the sale of goods that do not satisfy technical standards, say to protect health and safety or the environment, or to protect the holders of national patents or copyright, or to prevent anti-competitive behaviour (collusion among companies, or the behaviour of a company that grows so large that it can exclude its competitors from the market), and countless others.  All of these can be used to restrict or prevent the import of goods and services that do not satisfy the laws of the importing state.

The WTO system has two great exceptions to its fundamental rule. Customs unions. Free trade areas. A customs union has free trade among its members and a single trade policy vis-à-vis non-member countries, including the making of trade agreements. A free trade area has the first characteristic, but not the second. NAFTA, the Trans-Pacific Partnership, and the proposed Asia-Pacific Free Trade Area are examples. The UK sponsored the European Free Trade Area (1960) which allowed it to retain its external trade policy, including Commonwealth Preference and the Sterling Area financial system.

(The European Economic Area (1994) includes all the EU member states plus Norway, Iceland and Liechtenstein, as three of the four continuing members of EFTA, but not Switzerland which is an EFTA member but not a member of the EEA. Non-EU EEA members apply EU single market law, in what is called an ‘internal market’. They are formally consulted when new EU single-market legislation is being considered, but they do not participate in the law-making decisions and implementing acts of the EU institutions.)

When the European Economic Community (1958; known as the EU from 1993) was proving to be a spectacular success, the UK had to become a member (1973). Given that so much of UK trade was with EEC countries, the UK was subject to law and government in the making of which it played no part.

The problem was that, in the meantime, the EEC had become a vast legal and governmental system with masses of further agreements, laws, secondary legislation, subordinate agencies, committees of civil servants from the member states interpreting and applying the legal rules at the most detailed level, and countless decisions of the European Court of Justice. Why? For the same reason that explains the complexity of the WTO.

Removing the two traditional barriers to trade (customs duties and quotas) is relatively easy. Creating a level playing-field for trade and industry and commerce, and enforcing it, are extremely difficult things.  In capitalist terms, you have to create a market in which market-forces can determine production, distribution and exchange, and in which government economic intervention should assist in achieving that aim.

What came to be called the EU ‘single market’ is the creation of that level playing-field market, using EU institutions to create EU law integrated into the legal and governmental systems of the member states. Non-tariff barriers to trade had to be dealt with.

The EU had to undertake the massive and unending task of eliminating or harmonising non-tariff barriers to trade (shape of tomatoes, doctors’ qualifications, etc.), including aids to industry by national governments, and control of anti-competitive behaviour by companies. Movement of persons and of investment capital in response to market forces had to be freed, and the movement of those who provide professional services.

In highly developed economies, you cannot have a customs union without a single market. They are inseparable. You cannot be in the EU custom union and not be part of the single market. If you are outside the EU customs union, your economic activity in a EU member state will be subject to the ever-changing legal regulations laid down by the EU institutions and integrated into the law of the member state where you do business. For example, EU competition law applies to US companies trading in the EU. Cars imported into the EU must satisfy EU emissions standards.

It seems unlikely that a major trading-nation doing very much of its trade with member states of a customs union that includes the legal system of a single market would choose not to participate in the institutions that create and control that system.

It so happens that UK withdrawal is not the worst of the EU’s current problems. The relationship between a government and the market in capitalist systems is all-consuming and fundamental. The EU is in that relationship with the overall EU economy. But this means that the relationship tends to reach into higher and higher levels of the public policy which ultimately determines the distribution of the burdens and benefits of a society, perhaps even fiscal policy. In a liberal democratic capitalist system, this means that there must be politics.

The EU has the substance of traditional liberal democratic institutions, but it does not have the essence of liberal democracy, which rests on the relentless daily struggle of public opinion, causing and justifying law-making and government and administration. Resolving that problem is an urgent priority. Another urgent priority is to establish the EU in its rightful place as a great power on the global stage.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

(Suggested citation: P. Allott, ‘The EU Legal System Is Not a Thing You Can Leave’, U.K. Const. L. Blog (21st Feb. 2018) (available at https://ukconstitutionallaw.org/))

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The House of Lords Constitution Committee’s Report on the European Union (Withdrawal) Bill, HL Paper 69, is a valuable document, with many important insights and recommendations for improvements to the current version of the Bill. This comment relates solely to the Committee’s recommendations concerning the status of retained EU law in a post-Brexit world and supremacy. While the initial Bill is deficient in both respects, there are difficulties with the Committee’s recommendations, and there are, it will be argued, better ways to address the underlying problems.

Legal Status of EU Law Post-Brexit

The legal status of EU law within the UK legal order post-Brexit is fundamental, as recognized by the House of Lords’ Committee. It duly noted that ‘whether a law counts as primary or secondary legislation is of fundamental importance in the UK legal system’, (para. 39). However, the Bill, in its present form, says nothing about the issue.

The government’s approach was double-edged. Evidence tendered from the Department for Exiting the EU stated that EU law retained via clause 3 of the Bill should be regarded as sui generis, neither primary, nor secondary legislation, with a unique status in the UK legal hierarchy, (para. 42). Evidence tendered by the Solicitor General indicated that the government intended to use clause 17(1) to allow a Minister to decide whether, in a particular instance, EU retained law should be treated as primary or secondary legislation, (para. 67).

The Constitution Committee was rightly critical of both these rationales. In relation to the first rationale, the Committee noted that post-Brexit EU law would be domestic law, and that there was therefore no reason why it should not be treated in accord with traditional modes of domestic classification, (para 44). There would, moreover, be a plethora of problems if the classification of EU law as ‘sui generis’ or ‘unique’ were to be retained. In relation to the second rationale, the Constitution Committee dismissed the suggestion that the classification of EU law as primary or secondary legislation should reside at the discretion of a minister, stating that such a power would be ‘extraordinary and egregious’, (para. 68). The Constitution Committee’s preferred solution was to treat all clause 3 retained law as primary statute in a post-Brexit world. It felt that this was the optimal solution for the following reasons:

(i) It was not possible to distinguish between such measures, so as to be able to classify some as primary legislation and others as statutory instruments.

(ii) It would render such legislation more secure, in the sense that it could only be amended by later primary statute, or Henry VIII powers. Such legislation could not be amended or repealed pursuant to any statutory power to alter secondary legislation.

(iii) It would facilitate resolution of the supremacy issue, in the manner explained below.

The Constitution Committee’s approach is clearly preferable to the existing Bill. There are, however, five principal difficulties with the Committee’s approach to legal status, whereby all EU retained law is regarded as primary statute. First, it will lead to results that are constitutionally anomalous for EU law that is dealt with in part through clause 3 and in part through clause 2. The two areas are not hermetically sealed. To the contrary, they are intimately related for the following reason. EU legislation that takes the form of a directive will have been brought into UK law via the ECA 1972. It may be transformed into primary law, but most commonly it will be adopted as a statutory instrument via the ECA s 2(2). This is so even if the directive is in form and substance a legislative act enacted under Article 289 TFEU. However, all such directives are fleshed out through delegated and implementing acts enacted pursuant to Articles 290-291 TFEU, which will commonly take the form of regulations. These regulations will become part of UK law via clause 3. The Committee’s recommendation would then entail the following: the primary directive will continue to have the status of a statutory instrument under UK law, while the delegated and implementing acts made pursuant thereto will be invested with the status of primary legislation. This is contrary to constitutional orthodoxy in the UK or anywhere else. It will, moreover, lead to confusion for those who have to use the law. The difficulty set out here will affect all clause 3 measures that are delegated and implementing acts made pursuant to a directive.

Secondly, the classification of all clause 3 measures as primary statute has the consequence that such measures cannot be struck down under the HRA, nor are they amenable to common law judicial invalidation on non-HRA grounds. This was recognized by the Committee, which felt that it was an acceptable constitutional cost of the decision to invest all such measures with the status of primary statute. This is a matter on which opinion can clearly differ. It should, nonetheless, be noted that the limitation of judicial review will thereby attach to many thousands of measures that bear no affinity to primary statute in the UK, nor would they be regarded as legislative acts in the EU.

Thirdly, the reality is that it will be necessary to look behind the legal form of primary legislation given to clause 3 measures and recognize that many are delegated or implementing regulations enacted pursuant to a primary legislative regulation. The reason is as follows. The general principle is that if there is a clash between two pieces of primary legislation, priority is accorded to the later in time. The principle rests on sound constitutional foundations, reflecting as it does the assumption that the will of the more recent Parliament should prima facie be given preference in the event of a clash with that of an earlier Parliament. There are, however, difficulties with the application of this principle in the context of a schema whereby all clause 3 measures are invested with the status of primary legislation. It is axiomatic that an EU regulation that takes the form of a legislative act made under Article 289 TFEU will precede the delegated and implementing acts made pursuant thereto under Articles 290-291 TFEU. The resulting problem can occur in one of two ways.

(i) There is a clash between a delegated/implementing act and the primary regulation. All such measures are given the status of primary legislation and the former are accorded priority because they are later in time. This is clearly the wrong result. It can be avoided, but only by seriously qualifying the very assumption underlying the decision to invest all clause 3 measures with the status of primary legislation. Thus, the determination that the later ‘primary legislation’ would not, in this instance, take precedence over the earlier ‘primary legislation’ would be predicated on the substantive realization that the later measures were subordinate and secondary to the earlier measure.

(ii) There is a clash between a delegated/implementing act and the primary regulation, but it is decided that the former are not, for the purposes of UK law, later in time than the primary regulation, because all such measures were accorded the status of primary legislation under UK law at the same time. The clash between the measures must still be resolved. The sensible conclusion would be for this to be resolved in favour of the parent regulation, but this determination would, once again, be predicated on the substantive assumption that the delegated/implementing acts are not of the same importance as the parent regulation, notwithstanding the formal parity afforded to all such measures as primary legislation under UK law.

Fourthly, to regard all clause 3 measures as primary legislation will devalue the currency of such legislation as it has been regarded in UK political and constitutional tradition. The UK Parliament commonly enacts circa 40 primary statutes per annum, and a great many more statutory instruments. The same general ratios pertain as to the split in the EU between legislative acts and delegated/implementing acts. To flood the UK primary statute book with up to 10,000 primary statutes, the great majority of which are not, as judged by their substance, primary legislation, is not desirable.

Finally, the consequence of characterizing clause 3 measures as primary legislation is that they will be immune from change by secondary powers to amend secondary legislation. They will only be open to repeal or amendment by later primary legislation, or through a Henry VIII clause. This is regarded as a virtue by the House of Lords Committee. There is, however, a danger with this strategy. Exigencies of time mean that the government is unlikely to enact primary legislation to make the requisite changes to such measures. They will then deploy Henry VIII powers. The use of such powers is rightly frowned on, precisely because it gives the executive power to alter primary legislation through statutory instruments, with scant opportunity to oppose the change. If, however, the primary legislation that is altered through a Henry VIII clause is a relatively minor delegated or implementing act then use of the Henry VIII powers is unlikely to provoke constitutional outrage. To the contrary, it will be regarded as a legitimate method of effecting amendment or repeal. The consequential danger is that politicians thereby become inured to use of such powers, which will become the new norm for statutory change.

The difficulties concerning the legal status of EU law brought into UK law post-Brexit would be better addressed through the following new clause 4 in the Bill.

For the avoidance of doubt, direct EU legislation that was a legislative act enacted under Article 289 TFEU is deemed to be primary legislation when it forms part of domestic law on or after exit day.

For the avoidance of doubt, direct EU legislation that was a delegated act enacted under Article 290 TFEU, or an implementing act enacted under Article 291 TFEU, is deemed to be a statutory instrument when it forms part of domestic law on or after exit day.

A statutory instrument altering the preceding designation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

This approach has the following advantages:

(i) It provides certainty as to the legal status of EU law in the UK in a post-Brexit world. This is important for the ordinary citizen, lawyers, politicians, administrators and courts.

(ii) The assignation of legal status in the draft amendment would be easy to apply, since all clause 3 measures as enacted by the EU come with their status as legislative, delegated or implementing act firmly imprinted on the face of the measure.

(iii) The assignation of legal status coheres with the substance of such measures. The reality is that in the great majority of instances legislative acts enacted under Article 289 would be regarded as primary legislation under UK law; and in most instances delegated and implementing acts enacted pursuant to Article 290-291 TFEU would be characterized as statutory instruments. This is the core of the proposed amendment, with the possibility of altering this classification where it does not fit.

Supremacy

The Constitution Committee was also critical of provisions in the Bill concerning supremacy contained in clause 5. The essence of the approach in the Bill is that the principle of the supremacy of EU law does not apply to any enactment or rule of law made on or after exit day, but that it is still applicable to legislation made before exit day, with the consequence that pre-exit EU law will take precedence over pre-exit domestic law.

The Constitution Committee was critical of this approach in part because there were uncertainties as to the meaning of clause 5, and its scope of application. The principal critique was, however, that clause 5 rested on a conceptual error, in the sense that it was predicated on the concept of the ‘supremacy of EU law’ which only had meaning while the UK remained within the EU. The phrase was said to be a ‘fundamental flaw’ at the heart of the Bill, and retained EU law could not benefit from the supremacy principle when we leave the EU, (para. 89). The Committee’s preferred solution was to remove the existing clause 5 and deal with the issue through classification of all EU direct retained law as primary legislation, which would then be accorded priority in the event of a clash with earlier domestic law.

There is considerable force in the reasoning of the Constitution Committee, both with regard to uncertainties concerning the detailed meaning of clause 5 as presently formulated, and as to its problematic conceptual foundation grounded in the ‘supremacy of EU law’. There are, however, two points that should be made in this regard, one factual, the other legal. First, in factual terms, we need to keep the issue that is presently covered by clause 5(2) in perspective. Post-Brexit it is extremely unlikely that we are going to discover a closet full of inconsistencies between EU law and pre-existing UK law. This is in part because the UK has always been rather good at implementing EU law. It is in part because if there were such inconsistencies then it is very likely that they would have been the subject of a Commission enforcement action under Article 258 TFEU, or an individual would have raised the inconsistency before the UK courts, with the possibility of preliminary reference to the CJEU under Article 267 TFEU.

Secondly, in legal terms, it is advisable for there to be some way of dealing with the issue should it arise. The Constitution Committee’s solution is premised on investing all EU direct retained law with the status of primary legislation. The issue can, however, be dealt with straightforwardly if, as suggested above, some EU measures are accorded the status of primary legislation and others are regarded as secondary legislation. This can be achieved, while excising the language of the supremacy of EU law. Thus, a replacement for clause 5(2) could read as follows:

If, on or after exit day, there is any inconsistency between measures that have been made part of UK law through clauses 2, 3 or 4, and a UK enactment or rule of law in force before exit day, priority shall be accorded to the former over the latter.

The preceding formulation achieves the desired end and excises the language of supremacy.

Paul Craig, Professor of English Law, St John’s College, Oxford

(Suggested citation: P. Craig, ‘The Withdrawal Bill, Status and Supremacy’, U.K. Const. L. Blog (19th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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UK Constitutional Law Association by Constitutional Law Group - 5d ago

This week’s event announcements are below.

~~~

The Democratic Case for a Written Constitution

UCL Gustave Tuck LT, Wilkins Building, Gower Street, London WC1E 6BT

Thursday 1 March 2018, 6:00 pm – 7:00 pm

Speaker: Professor Jeff King (University College London)

Chair: Lord Pannick QC (Blackstone Chambers)

Series: Current Legal Problems 2017-18 Lecture Series

The United Kingdom is one of three countries in the world without a written constitution.  Many argue that a written and entrenched constitution is required in order to safeguard rights against majoritarian overreach, while others have firmly opposed such a reform.  Continuing the Current Legal Problems 2017-18 series with his inaugural lecture, Prof. King will argue that a written constitution is required to fully achieve democratic self-government and to allow the people to exercise true authorship over the most fundamental rules of the polity. These claims will be illustrated through a consideration of the theory and practice of constitutionalism, and an examination of recent developments in UK public law, the politics of Brexit, devolution, and parliamentary reform.

This lecture aims to be accessible for the general public as well as lawyers and scholars. Please find more details and reserve your place for free here.

Jeff King joined the UCL Laws as a Senior Lecturer in 2011, and has been Professor of Law since 2016. He is the Co-Editor of Current Legal Problems, formerly the Co-Editor of the UK Constitutional Law Blog, and sits on the Editorial Committee of Public Law as well as the General Council of the International Society of Public Law (ICON Society).  His book Judging Social Rights (Cambridge University Press, 2012) won the Society of Legal Scholars 2014 Peter Birks Prize for Outstanding Legal Scholarship, and in 2017 he was awarded a Philip Leverhulme Prize in Law.

The Current Legal Problems lecture series and annual volume was established over fifty-five years ago at the Faculty of Laws, University College London, and is recognised as a major reference point for legal scholarship.

~~~

Call for Papers
Annual Doctoral Seminar in Constitutional Theory:
International, European and Domestic Perspectives

Drawing on a successful inaugural event at the University of Liverpool in 2017, the University of Strathclyde Law School will host a two-day doctoral seminar in constitutional theory on 26th and 27th June 2018. We are delighted to announce that Professor Alison Young (University of Cambridge) and Professor Thomas Poole (London School of Economics) will each deliver a keynote lecture.
Submissions are encouraged from candidates at any stage of their doctoral studies. The seminar will provide a valuable opportunity for doctoral researchers to present and receive feedback on any aspect of their work that touches upon constitutional theory broadly defined. For example, we welcome contributions on subjects specifically related to constitutional theory (from an international, transnational, domestic or comparative perspective), or from more doctrinal projects which may benefit from feedback on a specific theoretical element. Speakers will present their work for feedback from an assembled panel of experts, including:

Professor Alison Young (University of Cambridge)
Professor Aileen McHarg (University of Strathclyde)
Professor Thomas Poole (London School of Economics)
Dr Christopher McCorkindale (University of Strathclyde)
Dr Paul Scott (University of Glasgow)

Throughout the two-days, our panellists will also present aspects of their own work. The seminar will also include a number of skills-based workshops looking at issues such as the process of writing a PhD and on academic publishing.

Interested postgraduate researchers are invited to submit abstracts of up to 500 words, along with a short biography (in the same document) to both Ben Murphy (b.l.murphy@liv.ac.uk) and Douglas Jack (douglas.jack@strath.ac.uk). The deadline for submissions is 9th April 2018. Successful applicants will be informed no later than 20th April 2018, and will be invited to send an extended abstract/short overview of their paper of up to 2,000 words by 1st June 2018.

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On 29 January the House of Lords Constitution Committee delivered a withering assessment of the EU (Withdrawal) Bill, describing it as ‘fundamentally flawed from a constitutional perspective in multiple ways’. Alongside trenchant criticisms of the delegated powers in the Bill, and the effects for the devolution settlement, the Committee’s Report focuses on the definition and status of ‘retained EU law’.

The aim of this short post is to explore some of the implications of the Committee’s approach to this vexed question. If, as the Committee recommends, ‘retained EU law’ is defined narrowly, it will have the virtue of restricting the scope of the Henry VIII Henpowers in clause 7, which only apply  to operational problems and deficiencies in relation to ‘retained EU law’. But a narrow definition gives rise to problems elsewhere. ‘Retained EU law’ is also the definition used for the purpose of the continuing application of existing CJEU case law and retained general principles of EU law under clause 6. Questions as to the validity, meaning and effect of pre-Brexit UK law which is not ‘retained EU law’ are therefore excluded from these interpretative provisions. In the Bill as worded, it is not clear if this difficulty is resolved by the operation of the principle of supremacy of EU law referred to in clause 5, the meaning and effect of which is very opaque. The Committee recommends that the principle of the supremacy of EU law be abandoned altogether; but if its approach were to be followed, there would be no EU principles which would apply to any law currently in the field of EU law which is not ‘retained EU law’. The implications are assessed by reference to the Equality Act 2010 (EqA).

The definition of retained EU law

As currently drafted, clause 6(7) of the EU (Withdrawal) Bill defines ‘retained EU law’, in broad terms, as a mixture of (i) EU-derived domestic legislation (clause 2), (ii) direct EU legislation (clause 3), and (iii) directly effective EU law rights (clause 4), in each case as interpreted by the CJEU. ‘Retained EU law’ is then subject to the case-law of the CJEU, as provided in clause 6. It is also subject to the Henry VIII powers in clause 7. This dual function generates problems, highlighted by the Committee’s treatment of each category.

Clause 2: EU-derived legislation

The definition of ‘EU-derived domestic legislation’ in clause 2 of the Bill is currently wide, including not only regulations made under the European Communities Act (ECA) but also other secondary or primary legislation which implements or ‘relates to’ the EU or EEA. In the employment sphere, for example, it would capture the EqA, which implements numerous Directives on discrimination (and Articles of the TFEU, such as Article 157) as well as regulations such as the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTW), implementing Directive 97/81/EC but made under s.19 of the Employment Relations Act 1999 instead of the ECA 1972. The intention of clause 2, according to the Explanatory Notes, is to preserve laws which would otherwise lapse on repeal of the ECA and to enable amendment of such legislation to ensure it functions properly after Brexit (EN para. 75). The result is achieved by making all such laws part of ‘retained EU law’.

The House of Lords Committee considers the category of EU-derived domestic legislation is too wide. First, it is unnecessary that it should include legislation which would continue in force in domestic law anyway, regardless of the repeal of the ECA (para. 21, referring to its Interim Report para. 25). Second, it is constitutionally inappropriate that primary legislation, the status of which is unaffected by Brexit, should become subject to the wide powers of amendment in clause 7 (para. 22). These different justifications produce different outcomes: according to the first, primary legislation together with secondary legislation not made under the ECA would fall outside the definition; according to the second, only primary would.

But both routes create the same problems. First, some technical amendments may be necessary to primary legislation (or secondary legislation not passed under the ECA) once the UK ceases to be a member of the EU; but if such law is no longer ‘EU retained law’ clause 7 will not bite on it at all. A second and more serious problem is that if you exclude legislation such as the EqA from the category of ‘retained EU law’, it will no longer be subject to the duties of interpretation in accordance with rulings of the CJEU by virtue of clause 6. Probably the most significant is the Marleasing duty, under which courts are to interpret domestic law ‘as far as possible’ in order to achieve the result required by EU law rules and principles, and which has led to a ‘broad and far reaching’ interpretative duty in domestic law, enabling the courts to depart from the literal meaning of a statute or imply words where necessary (see the authoritative guidelines in Vodafone No. 2 [2010] Ch 77, endorsed by the Supreme Court in Robertson v Swift [2014] UKSC 50 at para. 21).

There are many example in the case-law of how pre-Brexit rulings of the CJEU, coupled with the domestic courts’ radical interpretation of the Marleasing duty, have informed the construction of the EqA: see e.g. Rowstock v Jessemey [2004] ICR 185 (EqA interpreted to protect against post-employment victimisation in line with Case 185/97, Coote). Indeed, this approach has become so commonplace that it is increasingly unclear which interpretations of the EqA owe their effect to CJEU decisions and which do not. Ordinary domestic rules of interpretation, even based on the assumption that the implementing legislation was ‘intended’ to give effect to EU law, will not stretch so far as the Marleasing duty (see, for example, the Court of Appeal in Lock v British Gas [2017] ICR 1).

But if clause 6 no longer applies to the legislation post-Brexit, the most obvious means of preserving existing interpretations based on the Marleasing duty is lost. One potential solution to this conundrum would be to interpret the EqA in accordance with case-law of the CJEU not by virtue of clause 6, but on the basis of the principle of supremacy in clause 5. But this clause, as we shall see below, is even more obscure in its meaning and effects.

Clause 4: Direct and directly effective EU law

The definition of ‘retained EU law’ also includes ‘direct EU legislation’ in clause 3 and certain categories of directly effective EU law, referred to in clause 4. The Committee’s Report highlights the complexity of the relationship between the law retained by virtue of clauses 2 and 3 (para. 25), and the uncertain status of Directives under the Bill (paras 32-35). There are, in addition, problems with clause 4. The Committee is correct to highlight the fact that many EU law rights (for example those relating to the internal market and citizenship) are reciprocal in nature, and that they might make little, if any, sense post-Brexit (para. 27). The fate of these reciprocal EU law rights depends on the withdrawal negotiations, whose outcome is, as things stand, not known. Further, there are express exclusions in the Bill. The Committee is surely correct to call for greater clarity in relation to the impact of the exclusion of the Charter of Fundamental Rights and Francovich damages.

Clause 5: The supremacy of EU law

Clause 5 states that the principle of the supremacy of EU law ‘does not apply to any enactment or rule of law passed or made after exit day’ (clause 5(1)), but that it ‘continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’ (clause 5(2)).

The Committee finds that ‘the notion of maintaining the ‘supremacy principle’ following exit amounts to a fundamental flaw at the heart of the Bill’ (para. 89). The principle is said to be a ‘cumbersome’ device, ‘alien to the UK constitutional system’ (para. 91).  It draws attention to three fundamental problems with clause 5: first, it is not clear to which categories of EU retained law it will apply (paras 81-83); second, it is unclear if it applies to the common law (paras 84-87); third, it is hard to see how the supremacy doctrine can apply once EU law is domesticated. The Committee’s solution is to dump the principle altogether. It argues that the intended effect of clause 5 can simply be achieved by treating ‘retained EU law’ as if it were domestic primary legislation enacted on exit day, so ensuring that under conventional UK constitutional law principles, it has priority over pre-exit domestic law (paras 92-98).

There is considerable force in the Committee’s approach. A key aim of Brexit is to turn what was EU law into domestic law, such that ‘the externally-derived constitutional doctrines of the EU’ (para. 99) indeed no longer seem apt. The Explanatory Notes, the House of Commons Briefing Paper on the Bill, and Mark Elliott, all state or assume that, in line with what the Committee recommends, the intention is to afford priority to ‘retained EU law’ over pre-exit UK law. But, the Committee’s solution will generate other problems.

Back to the drawing board

Let’s go back to our example of the EqA. If it is not part of ‘retained EU law’ by virtue of clause 2, post-Brexit it will not subject to clause 6, in tension with how it has been consistently interpreted up to now. At present, the Explanatory Notes suggest that the supremacy principle in clause 5(2) incorporates the Marleasing duty in relation to pre-exit provisions of domestic law (Explanatory Notes, para. 101). It is far from clear, to us at least, that clause 5 achieves this result: clause 5(2) is obscure in its wording, and it is clause 6, not clause 5, which seems to be specifically directed to the interpretation of domestic law. In this regard, the Committee’s criticisms of the uncertain scope of the principle of supremacy, and its lack of clarity as to which domestic law it applies, are well made.

But the Committee’s solution to this obscurity, that the supremacy principle is excised from domestic law, removes the only provision by means of which EU law could continue to bite on the EqA post-Brexit, were it to fall outside the definition of ‘retained EU law’. The result is that the EqA would stand entirely outside the Bill, generating precisely the legal uncertainty which the Committee wishes to avoid. Existing interpretations of the EqA, based on EU law, would be open to question to the extent they went beyond domestic rules of interpretation; and the effect of rulings of the CJEU would be equally unclear, since clause 6 would not apply at all. The EqA would stand in a kind of legal vacuum: up to now, it has consistently been interpreted to accord with the rulings of the CJEU and the general principles of EU law; post-Brexit it would just be domestic legislation, unaffected by EU law in any way. Freed from its historic moorings in EU law, the EqA would enter uncharted waters, as would any other domestic legislation which doesn’t fall within ‘retained EU law’.

These are not the only problems, of course. If the Charter is no longer ‘retained EU law’, it will no longer influence the way the Act is interpreted by the UK courts. But the fundamental problem is the dual function of the definition of ‘retained EU law’ in the Bill. The more that category is narrower than existing law which implements, forms part of or is in the field of EU law, the narrower is the scope of clause 6, and the greater the need for some other provision to govern the post-Brexit interpretation of legislation which, up to now, has been interpreted consistently in accordance with EU law.

The Committee is correct to find that the Bill as drafted ‘risks fundamentally undermining legal certainty’. Its response was to seek to clarify, and in important respects, to narrow, the scope of ‘retained EU law’. This response makes perfect sense from the perspective of limiting Ministerial powers under clause 7. But, as indicated above, it creates problems when you consider the effects of clauses 5 and 6, and in particular it generates precisely the legal uncertainty the Committee wishes to avoid. The better approach, we suggest, is to keep a wide meaning of ‘retained EU law’ for the purpose of clause 6; to give greater clarity as to how EU law principles including Marleasing will apply post-Brexit (rather than rely on an obscure reference to a ‘supremacy principle’ in clause 5); and to use a different definition of which law is subject to the Henry VIII powers in clause 7, or some other means of restricting the scope of those powers. The dog’s breakfast which is the current Bill won’t be transformed by the Committee’s approach.

Michael Ford, Professor of Law, University of Bristol and QC, Old Square Chambers and Phil Syrpis, Professor of EU law, University of Bristol

(Suggested citation: M. Ford and P. Syrpis, ‘Retained EU law in the EU (Withdrawal) Bill: A Reaction to the House of Lords Constitution Committee Report’, U.K. Const. L. Blog (14th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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In November 2017, the Court of Appeal in R (Privacy International) v Investigatory Powers Tribunal unanimously held that a so-called “ouster clause” in respect of the of the Investigatory Powers Tribunal (IPT) was lawful. This decision may appear odd as out of step with what appears to be a steady march towards increasingly concrete principles of legality and the rule of law, limiting the capacity of Parliament to interfere with, or constrain, judicial review. Ever since the House of Lords read down the scope of an ouster clause in the seminal Anisminic decision so as to permit continued judicial oversight of the Foreign Compensation Commission for error of law it has always been doubted whether an ouster clause – however tightly drafted – would pass judicial muster. Instinctually, then, we might wonder whether Privacy International is an aberration, an outlier, or if it was simply wrong decided. This instinct is prima facie validated when read alongside judicial dicta doubting the ability of Parliament to legislate to restrict access to judicial review in cases such as Jackson, AXA General Insurance, and UNISON (discussed below). However, when we reconsider the substance and context of Privacy International, reconsider the ruling in Anisminic itself, and the debate about the balance between judicial review and primary legislation in the wider context, doubt is cast upon these instincts. Understood in this context, it is clear that the Court of Appeal reached the correct decision.

Privacy International in the Court of Appeal

The IPT is a special tribunal for the purposes of hearing complaints against the security and intelligence services (MI5, MI6, and GCHQ) established by the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA consolidated the subject matter of several pre-existing tribunals which also carried the same ouster clause in their enabling acts. The IPT is staffed by High Court judges and other distinguished lawyers. In R (A) v Director of Establishments of the Security Service the Court of Appeal recognised that it was ‘a judicial body of like standing and authority to that of the High Court’.  Unlike an ordinary tribunal, the IPT rules place the tribunal under a general duty of non-disclosure, and do not require it to hold oral hearings, although it may do so at its own discretion. The IPT meets in camera and adheres to a strict ‘neither confirm nor deny policy’ in view of the national security sensitive subject matter with which it deals. Such materials are not ordinarily admissible in courts. The IPT, however, can compel disclosure of information from the executive; but cannot disclose that information to the public. Such information can be disclosed to complainants only with the consent of the relevant executive agency. Complainants may not even know when their case is being considered. The statutory regime was designed by Parliament not to permit such activity.

Despite this, the IPT is seen to be broadly human rights compliant. In Kennedy v United Kingdom, noting the context of a complaint of unlawful covert surveillance, the European Court of Human Rights held that the IPT procedure was compatible with both Article 6 (right to a fair trial) and Article 13 (right to an effective remedy) of the European Convention on Human Rights (ECHR). The IPT is the exclusive body for hearing claims against any of the intelligence services under section 7 of the Human Rights Act 1998. Despite recommendations from the Independent Reviewer of Terrorism Legislation, unlike the High Court, the IPT cannot make a ‘declaration of incompatibility’ using section 4 of the Human Rights Act 1998. In response to trenchant criticism from academics and civil society, the IPT has moved towards holding some public hearings on matters of law. These take place using ‘assumed facts’, that is the facts alleged by the non-government party regarding the conduct of the intelligence agencies are assumed to be correct, and rights-based litigation proceeds on that basis. By the time the Court of Appeal was seized of the case, RIPA 2000 had been amended by the Investigatory Powers Act 2016, s 242(1) creating a right of appeal from the IPT on a ‘point of law against any determination of the Tribunal’.

The challenge to the ouster clause in section 67(8) RIPA was a preliminary issue as part of the campaign group Privacy International’s challenge to the legality of GCHQ’s alleged bulk hacking of phones and computers. The ouster clause reads as follows:

Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

Counsel on behalf of Privacy International made two arguments, both of which were ultimately unsuccessful. First, that the ouster clause was insufficiently clearly drafted so as to preclude judicial review for error of law, and second, that Parliament could not have intended to exclude judicial review, because this would run contrary to the principle of legality. Legality ins this sense encompassed both the rule  in the Simms case, and a strong presumption that Parliament intended to legislate with respect for the rule of law, human rights, and ‘other fundamental principles of the constitution’. Expressed as such, legality required the continued recourse to judicial review of an ‘inferior tribunal’- the classification of the Foreign Compensation Commission adopted by the House of Lords in Anisminic, which Privacy International also considered to apply to the IPT.

In response, counsel for the Tribunal argued that the ouster clause was sufficiently clear so as to exclude judicial review and more importantly, that, the Court’s approach to reading any purported ouster clause should take account of the fact that the principle of legality is in fact contextual: the nature of the body being insulated from judicial review must be considered as part of the approach to statutory construction. In respect of the context, the Court of Appeal noted that the IPT did not work with the same subject matter as the ordinary courts, but with a range of evidentiary materials which could jeopardise the interests of national security if revealed in open court.

The Court of Appeal considered the wording of the purported ouster clause to be sufficiently clear. What mattered was not speculative inferences about parliamentary intention vis-à-vis the rule of law (the words were given their ordinary meaning), but instead, the nature of the body being insulated from judicial review. The Court acknowledged that the language used by the draftsman in s67(8) of RIPA was ‘materially different’ from the language of the ouster clause at the centre of the Anisminic case. It expressly sought to exclude judicial review of claims relating to jurisdictional error of law. Moreover, the IPT’s equivalent status to the High Court meant that it was not an ‘inferior tribunal’.

Anisminic Revisited

Counsel for Privacy International was not misguided in their submission that the principle of legality was a ‘strong presumption’ of statutory interpretation. However, since Anisminic the courts have recognised that Parliament may properly seek to ration (as opposed to eliminate) legal controls in the face of competing considerations. Anisminic is held up as a judicial defence of the rule of law in the face of a (seemingly clear) ouster clause. However, it should not be taken to be authority for the idea that any attempt to restrict judicial review amounts to a violation of the rule of law. It was clear on the face of the ruling that the context of the challenged mattered. Lord Wilberforce suggested that although tribunals had limited authority derived from statute, meaning that there will always be a realm into which the tribunal is limited from entering, ‘the strength and shade of these matters will depend upon the nature of the tribunal and the kind of question it has to decide’.

Several decades later a similar line of reasoning seems to have underpinned the Supreme Court’s rationale in Cart for limiting judicial review of the Upper Tribunal to situations involving an ‘important point of practice of principle’ rather than a jurisdictional error of law per se.  Although unreviewable courts of limited jurisdiction were ‘exceptional’, the Supreme Court responded to the question ‘what level of independent scrutiny of the tribunal system is required by the rule of law?’ by acknowledging that unrestricted judicial review of un-appealable decisions was a disproportionate allocation of resources in the administration of justice. Of course, Cart did not involve the determination of the validity of an ‘ouster clause’. However, the comparison remains apt. Both cases involved a need to ration legality against a competing interest. In Cart it was the resource considerations of a broad swathe of public administration, in Privacy International it was the continued functioning of the national security state. The point is that courts have always recognised that judicial control of legality can be balanced against competing imperatives, so long as it is not entirely eliminated (as was the potential impact of the ouster clause in Anisminic).

Broader Implications and Context

The question remains, then, whether the draftsman has simply settled upon the winning formula for limiting judicial review. Or, indeed, whether Privacy International represents a retreat the seemingly absolutist judicial stances on the importance of the rule of law in relation to parliamentary sovereignty. In fact, it represents neither. The decision in Privacy International may, at first sight, look out of step with previous judicial proclamations on the relationship between democracy and judicial review, particularly in respect of ouster clauses. It is therefore important to trace this history to explain that the Court of Appeal’s decision can indeed be rationalised within the broader context of the constitution.

At the beginning of the twenty-first century a clearer picture began to emerge regarding the courts’ view of the precise limits of Parliament’s ability to encroach upon the rule of law.

An ouster clause in the Immigration and Asylum (Treatment of Claimants), etc. Bill, tabled by the New Labour government in 2003/2004 brought such questions sharply into focus. The Bill contained an ouster clause which purported to preclude further judicial review for error of law in respect of the new single tier appeal process against immigration decisions of the Home Secretary. In a lecture to students in Cambridge, Lord Woolf remarked that:

[If] this clause were to become law, it would be so inconsistent with the spirit of mutual respect between the different arms of government that it could be the catalyst for a campaign for a written constitution…What is the use of courts, if you cannot access them?  (Woolf (2004) 63(2) Cambridge Law Journal 317, 329)

Clause 11, which was removed from the final Act, would have resulted in no rights of appeal from the Asylum Appeal Tribunal, and no judicial review of the tribunal’s decisions. It would also have precluded any legal challenge to Home Office acts connected with subsequent deportation. The restriction on access to justice would have been nothing short of categorical. Woolf’s sentiments were echoed in the Jackson case, (decided in the same period) by Lords Hope and Steyn, and Lady Hale. Lord Steyn explained that an attempt to abolish judicial review via an Act of Parliament would not automatically be judged to be valid according to the principle of parliamentary sovereignty (Jackson [102]). Lord Hope in AXA General Insurance re-emphasised his dictum in Jackson that the ‘rule of law is the ultimate controlling factor’ on which the constitution is based’ (Jackson [107], AXA [51]) and clarified that, as it was not impossible for a government with a parliamentary majority to use that power to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual’, the courts must realise that the rule of law ‘requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.’ (AXA [51]). More recently, in UNISON the Supreme Court held that the fees payable by claimants before the Employment Tribunal were unlawful at common law because they constituted an unlawful interference with the common law right of access to justice. Lord Reed, for the majority, explained that ‘even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation…the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve.’ (UNISON [88]). The substance of the UNISON challenge was that the fees were prohibitively expensive compared with ordinary courts, and would have a disproportionate impact upon certain categories of claimants, and women in particular.

At first blush this looks like judicial radicalism. But the dicta in these rulings are not wild, unrestricted claims to judicial supremacy in the face of a constitution based upon parliamentary sovereignty and representative democracy. Instead, they can be seen to enshrine two principles, into which the ratio in Privacy International neatly fits. The first is the (democratically necessary) commitment of the judiciary to the protection of access to justice. Or more plainly, the simple act of keeping courts open to the individual. Access to justice is, after all, the right which facilitates all other legal rights. Clause 11, and the Fees Order at issue in UNISON constituted a near total restriction upon access to justice. This was not the case in Privacy International.

The second facet of Lord Reed’s dictum recognises a principle that has been present since Anisminic, namely that restrictions on access to justice must be proportionate. This line of dicta suggests judicial respect for democratically mandated legislation, up and until access to justice is realistically the subject of manifest interference (or more properly: elimination). Therefore, the Court of Appeal’s conclusion in Privacy International fits with the history of the treatment of ouster clauses and similar threats to the institutional capacity of the courts; it is not an outlier. Unlike the Foreign Compensation Commission, the IPT is not an ‘inferior tribunal’, nor is it precluded from legal oversight: appeal on a point of law is possible. The decision is simply a restatement of the principle that legality does not automatically ‘trump’ democratic intrusions into the legal process. The courts are willing to tolerate some democratic control of legal institutions via Acts of Parliament provided those intrusions are not absolutist and made in order to justify the maintenance of some other worthy facet of the public interest.

Hayley J. Hooper, Fellow in Law, Christ Church, University of Oxford

(Suggested citation: H.J. Hooper, ‘Balancing Access to Justice and the Public Interest: Privacy International and Ouster Clauses in the Broader Constitutional Context’, U.K. Const. Law (12th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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UK Constitutional Law Association by Constitutional Law Group - 1w ago

This week’s event announcements are below.

~~~

Law’s Lost Empire? Freedom of Speech and the Media in the World of the Internet, Thursday 22 February 2018

Prof. Catherine (Kate) O’Regan (Director of Bonavero Institute for Human Rights, University of Oxford)

UCL Cruciform LT2, Cruciform Building, Gower Street, London WC1E 6BT

6.00pm, Thursday 22 February 2018

In the next lecture of the Current Legal Problems 2017-18 lecture series, Professor O’Regan will examine the changes that the internet era has introduced and consider what role law may play in the future in both protecting freedom of speech on the internet, as well as legitimately regulating speech on the Internet.

Find full details and reserve your place here.

Kate O’Regan is the Director of the Bonavero Institute of Human Rights, and has had a distinguished career as a scholar, practitioner and judge, including a fifteen-year term of office as a judge of the Constitutional Court of South Africa. Kate has also served on a range of international adjudicative bodies, including as chair of the UN Internal Justice Council and President of the IMF Administrative Tribunal.

The Current Legal Problems lecture series and annual volume was established over fifty-five years ago at the Faculty of Laws, University College London, and is recognised as a major reference point for legal scholarship.

~~~

Call for participation

“Researching administrative power”

Workshop

20-21 September 2018

University of Essex, Colchester

The dramatic Grenfell Tower fire in London in 2017 illustrates poignantly the need to articulate specific administrative fields (fire inspections, building material regulation, poverty alleviation, housing, financial support to vulnerable communities) and to develop responses across the administrative system (regulation, accountability, learning from past mistakes). Rule-making and implementation of administrative decisions are indeed becoming embedded in a complex administrative machinery, where mapping the allocation of power becomes an extremely daunting task. Currently, two opposite dynamics seem to drive the organisation of administrative decision-making in the UK: one involves focusing administrative power on core tasks of policing and controlling compliance and the other spreading administrative power across a wide range of diverse actors, public and private, at central, devolved and local level.

This situation calls for a systematic investigation into how administrative power is organised and channelled and how rule-making and decision-making are actually organised in the UK. The
distinctive place and role of the law in this process need to be identified. The law is not merely controlling administrative power ex post; it is also framing, organising and channelling how
administrative power is used ex ante. But how does this actually happen?

We invite applications to participate in a two-day workshop on “Researching administrative power” at the University of Essex, Colchester, on 20th-21st September, 2018, organized with the financial support of the Society of Legal Scholars. This workshop is organized by Prof Peter Cane (Cambridge and ANU) and Dr Yseult Marique (Essex and Speyer).

Confirmed participants include: Prof David Cowan (Bristol), Prof Simon Halliday (York and New South Wales), Prof Robert Hazell (UCL, Constitution Unit).

The deadline for applications is 15th April, 2018. For full details, see the event poster HERE (PDF).

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Since the UK Government began negotiations over the withdrawal agreement under Article 50, questions have been raised about how Parliament will approve and implement the final agreement.

The Government’s stated position has long been that Parliament will have the opportunity to approve the final agreement through a motion “to be voted on by both Houses of Parliament before it is concluded”. On 13 December 2017 David Davis MP, the Secretary of State for Exiting the European Union, gave details of the procedures for both the approval and implementation of EU Exit Agreements.

He explained that the approval process is separate from the process of implementing the agreement through primary and secondary legislation. This post aims to explain the relationship between approving and implementing the withdrawal agreement and the role that Parliament will play once the negotiations are concluded.

Approving the withdrawal agreement

David Davis proposed that the process of approving the withdrawal agreement will take the form of a resolution in both Houses of Parliament. This resolution will cover “both the Withdrawal Agreement and the terms for our future relationship”. The Supreme Court noted in Miller in January 2017 that such a resolution does not have any legislative effect, but is nevertheless “an important political act”.

One agreement or two?

David Davis’s statement indicated that the resolution would cover at least two agreements. The Government expects that there will be more than one agreement secured through the Article 50 process: the withdrawal agreement itself (which will contain detailed provisions on citizens’ rights, transition, the exit bill and Ireland) and a framework for the future relationship. It is likely that the motion on the resolution will ask each House to approve both agreements together through a single decision.

When will the House be asked to approve the agreement?

The resolution would be put to the House “as soon as possible” after the agreements are concluded, according to David Davis. The amount of time between the publication of the two agreements and a decision on the resolution will have implications for how the agreements are scrutinised in the Commons. There might not be time for select committees to take evidence and comment on the agreements prior to the vote for example. If passed in the Commons, the resolution would then be put to the House of Lords.

A separate process under existing law

This proposed parliamentary approval process for the withdrawal agreement is separate from the procedure specified by the Constitutional Reform and Governance Act 2010 (CRAG). The procedure set out in CRAG enables the House of Commons, by passing resolutions, to indefinitely block the ratification of a treaty. The statement by David Davis acknowledged that the withdrawal agreement could be blocked by this procedure.

Implementing the withdrawal agreement

Parliament must legislate to implement the withdrawal agreement. Only then can it be ratified and come into force in domestic law. David Davis explained that the Government intends to do this, if the proposed resolution is passed in both Houses, through a “Withdrawal Agreement and Implementation Bill” (WAI Bill). This implies that the introduction of the WAI Bill is conditional on both Houses granting approval through the resolution discussed above.

The WAI Bill would need to be passed before exit day 29 March 2019. If it is not passed by then, any provisions in the withdrawal agreement that need to be given legal effect, like transitional arrangements or citizens’ rights, would have no legal basis.

This is because the UK has a ‘dualist system’ in which treaties do not automatically become part of domestic law. It is a constitutional requirement that any treaty obligation that needs to have effect in domestic law and is not covered by existing law in the UK will need legislation to implement it.

Because of this requirement to implement elements of the agreement before exit day, the scrutiny of the WAI Bill, which will be a major constitutional bill, will in practice be part of the parliamentary process of approving, as well as implementing, the withdrawal agreement.

What about the “Grieve amendment” to the EU (Withdrawal) Bill?

On 13 December, the House Commons voted for Dominic Grieve’s amendment to clause 9 of the EU (Withdrawal) Bill to limit the Government’s power to implement the withdrawal agreement. The original version of clause 9 would have enabled the Government to implement the withdrawal agreement in domestic law irrespective of whether Parliament had granted its approval to the content of the agreement through a resolution. David Davis’s statement on the morning of 13 December had offered a compromise by committing the Government to only implementing the agreement through clause 9 of the EUW Bill after a resolution had been passed by both Houses. This was not seen as sufficient by those who supported the amendment.

The relationship between approval and implementation: blurred lines

The Government’s announcement that they will introduce the WAI Bill has blurred the boundary between the approval and the implementation processes. This explains why many associate the Grieve amendment with the process of Parliament approving the withdrawal agreement. In fact, Grieve’s amendment means that the WAI Bill, and therefore the resolution to approve the agreement that will precede it, must be enacted before clause 9 of the EUW Bill can be used to implement the withdrawal agreement.

The amendment would prevent the Government using secondary legislation to implement the agreement in the period after the resolution to approve the agreement has been passed in both Houses but before the WAI Bill has received Royal Assent. In this sense Grieve’s amendment is principally concerned with how and when the agreement is implemented rather than how it is approved.

Historical parallels

When the UK joined what was then the European Economic Community, Parliament had to enact the European Communities Act 1972 before the UK could legally and constitutionally ratify the Treaty of Rome and join the EEC. This was despite the fact that each House had already voted on a motion to approve the UK’s Membership of the EEC.

Edward Heath, the then Prime Minister, made the second reading of the ECA 1972 a confidence vote. He told the House of Commons:

If this House will not agree to the Second Reading tonight and so refuses to give legislative effect to its own decision of principle, taken by a vast majority less than four months ago, my colleagues and I are unanimous that in these circumstances this Parliament cannot sensibly continue. (17 February 1972 col 752)

The Government won the vote by a majority of eight. The Bill was passed without amendment.

Since the Fixed-term Parliaments Act 2011, a second reading vote cannot be turned into a confidence vote in the same way, although in practice the Government would still be able to table a motion calling for an early election if it chose to.

Conclusion: a number of meaningful votes

There will be a number of “meaningful votes” between the publication of the agreement(s), likely to be in Autumn 2018, and exit day on 29 March 2019. If the resolution on the withdrawal agreements is passed in both Houses, there will then be a series of important votes on the WAI Bill, which will provide both Houses of Parliament the opportunity to scrutinise how the withdrawal agreement is implemented. Either House could also use the CRAG procedure to object to ratification of the agreement, and in the case of the Commons, indefinitely block it.

The vote on the resolution to approve both the withdrawal agreement and the framework agreement on the terms for the UK’s future relationship with the EU will be of vast significance. The substance of the framework agreement on the future relationship could be the principal focus of debate before the vote on the resolution, especially as the withdrawal agreement itself will be scrutinised during the passage of the WAI Bill. There will be limited scope for amending the WAI Bill, as amendments cannot seek to change the text of the agreement itself or, presumably, the political declaration on future relations.

This planned vote on a resolution will enable Parliament to give its view on the substance of the long-term relationship between the UK and the EU, which is expected to come into force after the end of the transitional period. If Parliament did not pass either the resolution approving the agreements or the WAI Bill, it is possible that on 29 March 2019 the UK could leave the EU with no withdrawal agreement.

Jack Simson Caird is Senior Library Clerk at the House of Commons Library.

(Suggested citation: J. Simson Caird, ‘Parliament and the Withdrawal Agreement: The “Meaningful Vote”’, U.K. Const. L. Blog (9th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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Quite a stir has been generated by the decision of a Dutch court to make a reference to the Court of Justice of the European Union on the issue of the EU citizenship rights of UK nationals post-Brexit.

The Article 267 procedure allows a national court to pause a case before it in order to send questions on how EU law ought to be interpreted to the CJEU. The Luxembourg court then answers the questions and leaves it to the national court to dispose of the case in the light of those answers.

In this case, two questions have been included in the reference. The first asks the Court of Justice whether the UK’s departure from the EU means that UK nationals will automatically lose EU citizenship and the rights such citizenship brings.

If the answer to the first question is no, then the national court asks the Court of Justice to determine what conditions ought to apply to the maintenance or limitation of those rights.

The Claim

The applicants argue that because the Article 20 of the Treaty on the Functioning of the European Union (TFEU)  says that EU citizenship “shall be additional to national citizenship and not replace it” this means that the EU citizens who are already EU citizens cannot be deprived en masse of the EU citizenship because the state of which they are a national leaves the EU.

On this basis they successfully convinced a judge in Amsterdam District Court to refer a question to the CJEU on the basis that:

“It is reasonable to doubt the correctness of the interpretation of Article 20 of the Treaty on the Functioning of the European Union that the loss of the status of citizen of an EU member state also leads to loss of EU citizenship,”

This approach seeks to use get the Court of Justice to put its money where its citizenship rhetoric mouth has been. In particular, the CJEU has placed significant emphasis on the importance of EU citizenship, most notably its statement in Grzelczyck that EU citizenship was “destined to be the fundamental status of nationals of Member States”. After all, if EU citizenship is a fundamental status belonging to individuals, how can it be stripped from those individuals en masse and against their will?

In addition, the Court of Justice has ruled in cases such as Rottmann, that while the acquisition and deprivation of nationality is a Member State competence, if in exercising that competence Member States take decisions which result in the loss of EU nationality they are acting within the field of EU law and must ensure that their decisions satisfy the requirements of EU law. These requirements imposed a duty to ensure that any decision that resulted in the deprivation of EU citizenship satisfied a proportionality test. This must surely mean that if Member States are bound to respect the principle of proportionality in acting to deprive a person of EU citizenship, the EU is subject to the same duty.

The Weakness of the Claim

First, the Court of Justice may rule that the reference is premature. It is, to say the very least, not yet clear what the eventual deal between the EU and UK will be. We do not therefore know what EU law rights will be retained or lost by UK nationals once Brexit takes effect. In addition, even if the Court of Justice were to rule that any Brexit deal had to ensure that any loss of rights by UK nationals was proportionate, what would the Dutch Court be able to do with such a ruling? There is no deal before it whose impact on rights it can judge to be proportionate or disproportionate.

The Court of Justice has been clear that it is entitled to refuse to answer questions that are hypothetical or where the Court does not have the factual or legal material before it to give a useful answer. As it said in Blanco Pérez and Chao Gómez:

‘the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’ (paragraph 36).

The reference from the Dutch Court clearly falls into this category. It is hypothetical and incapable of producing answers from the CJEU that could then be applied in the litigation before the national courts.

Furthermore, if the substance of the applicants’ case is that the EU institutions are precluded from depriving UK nationals of EU law rights then it would probably be more appropriate for the action to take the form of an action for annulment of the relevant EU law as provided for under Article 263. This could occur once the measures depriving UK nationals of EU law rights are given legal form (although national actions implementing this EU law could later on, be challenged in national courts and then made the subject of an Article 267 reference).

Even if the Court agrees to give the answers sought, the merits of the case seem weak. The argument that ceasing to be a national of a Member State does not lead to loss of EU citizenship because Article 20 TFEU (and Article 9 of the Treaty on European Union) state that EU citizenship is ‘additional to national citizenship’ is not compatible with the full text of the article or other references to citizenship in the Treaties.

What Article 20 TFEU actually states is:

‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’

Article 9 TEU is almost identical stating:

‘Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.’

Thus, both articles clearly make EU citizenship dependent on holding the nationality of an EU Member State. This is in line with the Preamble of the Treaty on European Union which states that the signatories are ‘resolved to establish a citizenship common to nationals of their countries’.

Seen in this light, it is clear that the reference to EU citizenship being ‘additional’ is intended to provide reassurance that EU citizenship will not extinguish or replace national citizenship, not to remove the link between nationality of a Member State and EU citizenship.

In addition, while the Court of Justice has said that EU citizenship is ‘destined to become the fundamental status’ of nationals of Member States, this destiny has not yet been realized. Indeed, in recent cases such as Dano and Alimanovic, the Court has backed away from its development of EU citizenship in this direction (See D. Thym ‘When Union Citizens Turn into Illegal Immigrants: The Dano Case’ (2015) 40 European Law Review  249-262 and R. McCrea Forward or Back: The Future of European Integration and the Impossibility of the Status Quo European Law Journal Volume 23, Issue 1-2, March 2017 Pages 66–93.

Furthermore, even if a proportionality analysis were to be engaged upon, the need to defer to a majority decision in a national referendum would surely weigh heavily with the Court. Finally, a ruling that precluded the EU from removing the EU law rights of UK citizens would raise other issues. It would undermine the reciprocity inherent in the EU system as there would be no means of ensuring reciprocal rights for EU citizens in the UK. It would also create a category of EU citizen deprived of the ability to participate in the democratic life of the EU as UK EU citizens would be unable to vote in European Parliament elections, something that the European Court of Human Rights found problematic in relation to the previous exclusion of Gibraltar from European Parliamentary elections.

Karen Alter’s work notes the greater enthusiasm for using EU law on the part of lower courts in national systems. The reference provides a moment in the spotlight for Amsterdam District Court which agreed to make the reference to the CJEU under Article 267 but the Court of Justice would be foolish to agree to take on such a speculative case at this stage. Partly because referendums are such a horrendous way to take multi-faceted political decisions, we still have very little idea what kind of EU legal changes are in store for UK nationals. Fundamental rights issues calling for judicial intervention may eventually arise if Brexit leads, for example, to expulsion of people with established private and family lives but we cannot know that until the shape of the eventual deal is clear.

It is very sad for UK citizens who feel the same attachment as many of their fellow EU citizens to their European citizenship. But the appropriate place for them to channel these feelings into action is in the political arena. Despite the progress made by the European integration project we are still largely in an era of national democracy and this means that UK citizens are bound by the decision of a majority their fellow citizens. For the Court of Justice to intervene in the way that it has been asked to would be a major error.

Author’s note: I should mention that the Rottmann and Blanco Pérez decisions were the subject of opinions from AG Poiares Maduro while I was working as a référendaire in his cabinet.

Dr. Ronan McCrea is Senior Lecturer in the Faculty of Laws at University College London and a Visiting Professor at the Central European University in Budapest.

(Suggested citation: R. McCrea, ‘Brexit EU Citizenship Rights of UK Nationals and the Court of Justice’, U.K. Const. L. Blog (8th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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We appear to be witnessing an attempt to create a new taboo. Lord Turnbull, former Cabinet Secretary under Tony Blair, has likened accusations of bias on the part of Treasury officials to attempts to blame Jews, socialists, communists, liberals and civilians for Germany’s defeat in the First World War (“Brexit attacks on civil service are worthy of 1930s Germany”, The Observer, 3 February 2018). Lord Turnbull’s stern adjuration was swiftly parroted by Chuka Ummuna MP, who described attacks on the civil service as a dark and dangerous attack on democracy, with a strong whiff of the 1930s (“A direct threat to British democracy: Tory Brexiteers denounced by Labour MP”, The Independent, 3 February 2018). These views were expressed in response to Jacob Rees-Mogg MP’s accusation that Treasury officials were drawing up economic models deliberately to undermine Brexit.

So, one may not attack the civil service. This is on top of the taboo in the wake of Miller/Daily Mail against intemperate attacks on the judiciary. Overly-vigorous criticism, or perhaps indeed any criticism, of the State’s non-elected officials will, so the story goes, send us down the road of becoming a semi-fascist state.

This argument does not, however, really stack up viewed against the backdrop of constitutional history, which is littered with accusations of the political bias of the civil service, more often from the Labour Party than from the Conservative Party.

For example, Marcia Williams, Political Secretary to Harold Wilson, commented on the 1964-70 Labour government that “the electorate believes that on Polling Day it is getting a chance to change history. The reality is that in many cases the power remains with the civil servants who are permanently ensconced in Whitehall.”

Williams gave short shrift to the claim of civil service neutrality: “Are they really neutral as they so often claim with such sanctimonious self-satisfaction?  But what is neutrality anyway, within a body with such immense power over so many lives?” Reflecting on the civil service’s class nature, Williams reflected that “it is small wonder too that their whole background is so conservative in origin that their inclinations must be more to the Right than to the Left…. Without reform at the roots the vicious social circle will preserve the status quo.” As such, Williams claimed that the civil service favoured Conservative governments over Labour ones (Marcia Williams, Inside Number 10, London: New English Library, 1972: 274-281).

Williams’ sentiments are corroborated by The Crossman Diaries in which Richard Crossman chronicles the “running battles” which he had with “the Dame” – top civil servant Dame Evelyn Sharp – and the way she continuously tried to sabotage or emasculate legislation which she herself detested, such as that on leasehold reform.  (R. Crossman, Diaries of a Cabinet Minister, Volume 1: Minister of Housing 1964-6, London: Book Club Associates, 1975: 620).

As for civil service political bias in favour of European integration, Tony Benn sensed its emergence during the 1974-79 Labour government: “If British officials had to choose between the waning powers of British ministers and the British Parliament and the growing strength of the European bureaucracy, they would choose the latter.  …  Every minister who has a big volume of European business is represented on a whole host of committees in Europe by officials.  … This move towards official control is a shift from Parliament to officials.” (T. Benn, Arguments for Socialism, Harmondsworth: Penguin, 1979: 165-6).   Benn’s argument would, of course, make the civil service judges in their own cause on matters of Brexit.

As mentioned earlier, the present controversy is reminiscent of the earlier fracas over whether it was acceptable to call judges “enemies of the people”. Establishmentarians argued that such exercise of free speech would lead to a semi-fascist state. The fact that this country’s most famous law monograph – J.A.G. Griffith’s The Politics of the Judiciary – argues that judges have been precisely the enemies of Britain’s underprivileged majority, was conveniently ignored. History was rewritten in favour of deference to the Establishment. In fact the political nature of the judiciary and the political nature of the civil service have much in common. It is human nature that people do not live their lives in a series of hermetically sealed containers and that their political views are bound to seep out into their work, be it judicial or governmental. The question of the social class of people who become top judges and top civil servants is also pertinent in this regard.

Given the track-record of the civil service, the question of whether Treasury officials are indeed being politically biased is a controversy which deserves to be debated on its merits.  Such debate might well involve consideration of the detailed content of the Treasury’s reports, of the Treasury’s track-record in making economic predictions (e.g. the banking crisis 2008), and of the broader role of officialdom in fashioning Treasury policy. The political impartiality of the civil service cannot credibly be “taken as read”. Rather, it should be the subject of vigorous analysis and argument, by political actors, commentators and scholars alike. Attempts to stifle such argument at birth, by cocooning the civil service from criticism and likening its critics to Nazis, should therefore be resisted.

Danny Nicol, Professor of Public Law, University of Westminster

(Suggested citation: D. Nicol, ‘Civil Service Impartiality, Free Speech and the Nazi Comparison’, U.K. Const. L. Blog (6th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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Introduction: Multiple votes, one referendum

Even before the vote on 23 June 2016, questions were raised about the possibility of a ‘second’ referendum. I place the term ‘second’ in inverted commas because the idea that another vote means another referendum reflects a misunderstanding both about (i) what a referendum is and (ii) the role of referendums in the United Kingdom’s constitutional arrangements. On the ‘second’ referendum view, a referendum is synonymous with a vote. This is not the case. I will argue in this post that a referendum is a multi-stage process of referring a question to voters. This does include one vote, but may well include multiple votes. I will also argue that the conflation of referendums with votes underlies many of the flaws of the Brexit referendum in particular and the use of referendums in the United Kingdom in general. This is not a political argument for or against Brexit. It is a constitutional argument about what the role can and should be for voting in the process of constitutional reform through referendums in the United Kingdom.

Brexit and the ad hoc uses of referendums in the UK

In the case of Brexit, the vote in the referendum was used to begin a process of constitutional reform. I will argue shortly that this is not the best role for voting in a referendum process, but it is first necessary to establish that this is not the only role that voting might play. Votes in referendums have been used in many different ways in the United Kingdom. Sometimes votes have been used to trigger Bills becoming law and to approve proposals before they become law. A few examples of this approach include (i) the devolution referendums in Scotland and Wales in 1979, (ii) the Referendum on the Belfast Agreement in 1998, and (iii) the Alternative Vote referendum in 2011. In many cases, however, the role of voting in referendums is ambiguous. A good example of this is the Scottish Independence referendum of 2014 where a comprehensive white paper was central to the debate about the referendum question, but was not tied to the referendum question itself. In the 2014 Scottish Referendum case, though, at least the assumptions underlying the case for independence were articulated. These examples demonstrate that not all referendums are created equal. Some are more successful than others.

The success conditions of a referendum

A referendum is successful when it satisfies the reasons for holding a referendum in the first place. This means it addresses disagreement in a decisive way, providing people with a reason to go along with the outcome of the referendum, irrespective of whether they agree. This does not mean it resolves disagreements altogether; neither votes nor referendums can do that. But what referendums can do is provide additional direction to representatives about how voters want to proceed when there is disagreement about constitutional reforms. Votes alone, however, are limited in the direction they can provide. They can provide general but not specific guidance to representatives. The best way to remedy the general character of voting is by connecting votes in referendums to proposals for reform.

The importance of proposals for reform

There are three reasons that (at least provisional) proposals for reform are helpful for successful referendums. The first is that they help ensure referendum outcomes are consonant with other democratic values. Proposals for reform require and include the consultation, compromise, and consideration of minority rights that democracies require. Further, these processes of consultation and compromise, as well as the recognition that fundamental rights will be protected, are part of what give voters a reason to go along with outcomes they do not agree with. Additionally, proposals improve the debate that precedes the vote in referendums because voters are weighing the merits of tangible options rather than hypotheticals. Finally, proposals are important because after the vote the direction given to representatives is clear. Ideally, these processes where proposals are created will be driven by constitutional conventions that are (i) led by the public and (ii) open to the public. Given the limits of voting, it is important that voters have other opportunities to help determine the content of constitutional reforms through these sorts of processes.

Referendums and the limits of voting

As Dicey argues in the Introduction to the Study of the Law of the Constitution, the referendum is best understood as ‘The People’s Veto.’ Dicey says referendums are expressions of popular sovereignty and the preferences of the electorate, but they are best understood as negative expressions of popular sovereignty. What Dicey means by this is that votes in referendums are well placed to demonstrate what voters do not want. They are best understood, Dicey says, as ‘checks against ill-considered constitutional changes that do not command broad public sanction.’ Dicey is right about this. Given the variety of views that voters have when they vote, votes in referendums are not well placed to articulate what voters do want specifically out of a proposal for constitutional reform. When votes in referendums begin processes for reform, they are too blunt an instrument to aggregate political will about what those reforms should include: although of course they do demonstrate that such reforms are necessary. The role for voting in referendums Dicey advocates, and I support here, reflects the idea that the ultimate source of authority in a democracy is voters, but it takes seriously the limits of how voters’ preferences can be articulated through the act of voting alone. Luckily, though, voting is only one part of a (successful) referendum process.

Referendums in legislation: The problem persists

Unfortunately, Brexit is not an isolated case where votes and referendums have been conflated. This misunderstanding is enshrined in legislation too. Consider, for instance, s 1(1) of the Northern Ireland Act 1998 which holds:

(1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

Consider too s 63A(3) of the Scotland Act 2016 which says:

‘… it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.’

Both of these Acts hold that the role for voting in referendums is to begin rather than approve processes of constitutional change. This is starker in the case of the Northern Ireland Act 1998 which holds that a vote in a referendum triggers the creation of a proposal for reform. Implicit in the Scotland Act too is the idea that votes are meant to come first and proposals for constitutional reform are to come afterwards. This legislation demonstrates that the misconceptions at the heart of the Brexit referendum also go beyond Brexit.

Should there be another vote in the Brexit referendum?

When I was young, and lost drivers would stop and ask my parents for directions, my Mom and Dad would often say: ‘Well if you’re trying to get to there I wouldn’t have started from here!’ This is one of the challenges which underlies the Brexit referendum and the question of whether there should be another vote: I would not have started from here. Ideally, there ought to have been a referendum on the Lisbon Treaty. Such a referendum would indeed have approved proposals for reform. The decision not to hold such a referendum, even though one was promised on the earlier Constitution Treaty, created the intractable political problems which eventually led to Brexit. It is not just New Labour, however, who tactically misused referendums. Both through acts and omissions, all governments since the 1970s have contributed to referendums evolving without underlying constitutional principle. The debate about referendums is now so confused that in law, theory, and politics they are conflated with bare votes. This confusion in turn has created a situation where another vote on Brexit is treated as a ‘second’ referendum rather than another part of a process of constitutional reform which remains ongoing. Of course the first vote in the Brexit referendum means that some change to the UK’s relationship with the EU is required, but another vote would offer (at least some more) clarity about what voters think that change in relationship should mean.

Note on Submission. UCL’s Constitution Unit is currently holding an Independent Commission on Referendums (ICR) to consider the roles for referendums in the United Kingdom. The ICR continues to welcome submissions from specialists and interested members of the public. Some of the material in this post was also submitted as evidence as a part of that process.

Leah Trueblood is a Stipendiary Lecturer in Law at Hertford College, Oxford.

(Suggested citation: L. Trueblood, ‘The Merits and Meaning of a ‘Second’ Referendum’, U.K. Const. L. Blog (5th Feb. 2018) (available at https://ukconstitutionallaw.org/))

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