Tuesday 30 January 2018

Brexit - Constitution Committee Report - Legal status of Retained EU Law

The House of Lords Constitution Committee report published on 29th January is probably the most detailed available analysis of the European Union (Withdrawal) Bill.  The report may be read via the Constitution Committee website - 9th Report Session 2017-19.   This follows the committee's preliminary (7th March 2017) and interim (7th September 2017) reports.

Here is the HTML version  of the Bill as introduced to the Lords and Parliament has published a tracked version showing the amendments made by the Commons.  


Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.'  The general scheme of the European Union (Withdrawal) Bill is to retain, with important exceptions (Clause 5);  EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things.   Clauses 2 to 6 are concerned with Retention of Existing EU law.  This earlier post looked at the Bill as it stood upon its introduction to the House of Commons and Explanatory Notes are available. 

Retained EU Law:

Chapter 3 of the Report considers Retained EU Law and notes (para. 18) - “Retained EU law” will form a discrete, novel and legally significant category of law. As we concluded in our interim report, “it is imperative,in the interests of legal certainty, that there is maximum clarity as to what counts as retained EU law” on and after exit day. In the rest of this chapter, we consider what constitutes retained EU law. In the following chapters, we examine the status of that body of law, the application of the “supremacy principle” to it and its interpretation by the courts.

Three categories of Retained EU Law arise under Clause 2 to 4 of the Bill.  The two categories coming under Clauses 3 and 4 are referred to in the Report as "Retained Direct EU Law" though this term is not used in the Bill.

Retained EU Law

Retained Direct EU Law
(Term used in the report but not in the Bill)

EU Derived Domestic Legislation

Direct EU Legislation

Directly Effective EU Law

EU-derived domestic legislation” that is saved by clause 2. This includes domestic secondary legislation made under the European Communities Act 1972 for the purpose of implementing EU directives.

This is already either domestic primary legislation or domestic secondary legislation.  Under the Bill, it will have the same status post-exit as it had pre-exit.  

“Direct EU legislation” that is rendered part of domestic law byclause 3. This includes EU regulations, EU decisions and EU tertiary legislation (e.g. provisions made under regulations and directives) as they had effect in EU law immediately before exit day.

Directly effective EU law that is saved by clause 4. Clause 4 saves directly effective EU law that had effect in the UK by virtue of the European Communities Act 1972 and that is not already saved by clause 3. Clause 4 will therefore, for instance, domesticate directly effective treaty provisions and (at least some) provisions in directives that are capable of direct effect.

Chapter 4  notes that the Bill is silent as to the domestic legal status of retained direct EU law.  The Status of Retained EU Law is considered in detail and the Committee makes an important recommendation.

Para. 39 states -"Whether a law counts as primary or secondary legislation is of fundamental importance in the UK legal system. Primary legislation in the form of Acts of Parliament is the product of a legislature that is sovereign, in the sense that it has legally unlimited powers. In contrast, secondary legislation is, by definition, made under limited powers that are capable of being unlawfully exceeded. This distinction has important consequences when considering the status of retained EU law under this Bill."

At paras. 40 to 42 the Report comments -

40.  Broadly speaking, the Bill creates two types of “retained EU law”. The first type is “EU-derived domestic legislation” under clause 2. As we explain in Chapter 3, this category consists of domestic legislation that already exists. It is therefore already either domestic primary legislation or domestic secondary legislation; and under the Bill, it will have the same status post-exit as it had pre-exit.

41.  EU-derived domestic legislation under clause 2 can be distinguished from “retained direct EU legislation” that is domesticated by clause 3 and other directly effective provisions of EU law that are domesticated by clause 4.  (We refer to the law domesticated by clauses 3 and 4 collectively as “retained direct EU law”.) The crucial difference between EU-derived domestic legislation and retained direct EU law is that whereas the former already has a particular domestic status, the latter does not. Therefore, while the legal status of EU-derived domestic legislation is clear post-exit, the same is not true of retained direct EU law.

and at para 44 ...

"Retained direct EU law will be domestic law. There is no reason why Parliament cannot or should not assign to retained direct EU law a recognisable domestic legal status. The fact that retained EU law began life as something other than domestic law does not prevent Parliament from assigning it a domestic legal status once it becomes domestic law. Nor does the fact that retained direct EU law originated outside the domestic legal system provide any good reason for neglecting to assign it a domestic legal status once it is recognised as domestic law."

The Report goes on to comment (para 51) that "it is essential that all retained direct EU law has the same legal status for all purposes."  The Committee therefore recommended (para 52) that "the legal status to be "accorded to all retained direct EU law for all purposes" should be "that of domestic primary legislation, as directly effective EU law is closely analogous to domestic primary legislation. This will secure legal continuity and certainty post-exit."

Many more points could be made about Chapters 3 and 4 and a full reading is crucial.  Adoption of the committee's recommendations would result in far less legal confusion (and possibly litigation) post-Brexit.   

A further post will look at Chapters 5 to 7 - The Supremacy Principle, Charter of Fundamental Rights, and Interpretation of Retained EU Law.   A final post will look at Chapters 8 to 10 - Delegated Powers, Scrutiny of Delegated Powers, and Devolution.

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