Constitutional Principle, the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018
| Date | 01 March 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12403 |
| Author | Paul Craig |
| Published date | 01 March 2019 |
bs_bs_banner
LEGISLATION
Constitutional Principle, the Rule of Law and Political
Reality: The European Union (Withdrawal) Act 2018
Paul Cr aig∗
The European Union (Withdrawal) Act 2018 is the cornerstone of UK legislation designed to
accomplish the legal dimension of Brexit. It brings the entire acquis of EU law into UK law in
order to avoid regulatory black holes that would otherwise occur. The Act embodies a twofold
legislative strategy: EU law brought into UK law thereby is to be made fit for purpose by exit
day, with necessary changes being made by statutory instrument; Parliament can then decide at
greater leisure thereafter whether it wishes to retain, amend or repealthis leg islation. The burden
placed on Parliament is unprecedented, all the more so giventhe exigencies of time in which the
changes are to be made. This article explicates the principal provisions of the 2018 Act, and the
concerns as to constitutional principle and the rule of law raised by the legislation. The tensions
in the drafting process are made apparent, and uncertainties in the resulting text are revealed.
INTRODUCTION
The European Union (Withdrawal) Act 2018 (EUWA) became law with rela-
tively few amendments forced on the government.1Threats from the House of
Lords and the devolved assemblies were largely seen off, although the political
significance of the former remain undiminished, and the constitutional ramifi-
cations of the latter remain to be seen. The Act is complex and it is not possible
to consider all provisions in this article. The devolution provisions are very im-
portant,2and will be dealt with in a separate article. This article does, however,
seek to provide an overview of the principal building blocks in the EUWA.
The structure of the argument is as follows. It begins with the rationale for
the EUWA,followed by repeal of the European Communities Act 1972 (ECA).
The focus then shifts to explication of the way in which EU lawis retained post-
Brexit, and the status of that law thereafter. This is followed bysections analysing
exceptions to retention, and the EUWA provisions concerning interpretation
of retained law. The executive is accorded broad powers to enact subordinate
legislation to deal with Brexit. The complex provisions are examined, and this
∗St John’s College, Oxford. I am grateful for comments from Alison Young.
1 A bibliography of documentation relating to the European Union (Withdrawal) Bill can be
found at https://docs.google.com/document/d/1aGQNgOI-xkdWioRjLWhrI1KKS1GXJspr-
qtJTyfxOGE/edit (all URLs were last accessed on 10 December 2018); M. Elliott and S. Tierney,
‘Political Pragmatism and Constitutional Principle: the European Union (Withdrawal)Act 2018’
[2019] PL 37.
2 R. Rawlings, Brexit and the Territorial Constitution: Devolution, Reregulation and Inter-governmental
Relations (Constitution Society, 2017); P. Bowers, The European Union (Withdrawal) Bill: De-
volution, House of Commons Briefing Paper 8154, 24 November 2017.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(2) MLR 319–366
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
The European Union (Withdrawal) Act 2018
is followed by the penultimate section that considers legislative oversight of
executive power. The final section addresses Parliament’s powers in relation to
the final deal, and in relation to the no deal scenario.
Understanding the EUWA’s complex provisions is a condition precedent to
assessment of issues of constitutional principle raised by it. These issues will
be considered in due course throughout the subsequent analysis, juxtaposed to
examination of particular sections of the legislation. By the same token, it is
helpful to adumbrate at the outset broader concerns raised by the legislation.
There are constitutional concerns as to the balance between legislative and
executive power, and accountability. The practicalities of leaving the EU were
always likely to place strains on this relationship, given the scale of the task at
hand. The need to bring the entire acquis of EU law into UK law, and to do so
within a narrow time frame, resulted in the grant of very broad delegated power
to the executive, and apprehension as to the adequacy of legislative oversight.
This was exacerbated by frequent recourse to Henry VIII powers, whereby the
executive could alter primary legislation through delegated power. Disquiet
as to the balance between legislative and executive power is not, however,
confined to this terrain. It is also prominent in relation to the debates on the
Bill, and the provisions in the EUWA, as to the role of Parliament in approving
or not the deal struck by the executive, and as to what should occur in the
event of no deal being approved.
There are, in addition, concerns that relate broadly to the rule of law. This
is not the place for an exegesis on the meaning of this contested concept.
Suffice it to say, for the present, that most agree that clarity in legislation
and the ability to plan one’s life cognizant of the legal consequences of one’s
actions is a core element of the rule of law, whatever other elements it might
contain. Statutes are akin to buildings, with their own architecture, elegant or
inelegant as they may be. Truth to tell, the EUWA is not an easy read, and
the legislative architecture tends to the baroque and the mannered, rather than
renaissance symmetry. Political constraints, coupled with temporal exigency,
underpin the finished product, and are essential for an understanding of the
resulting architectural form. There are, as will be seen, a plethora of rule of
law concerns that arise from EUWA, including: the status of EU law that is
brought into the UK legal order; the effect of the Charter of Rights, and
general principles of EU law in a post-Brexit world; and the powers of national
courts in relation to the interpretation and application of EU law enacted both
before and after Brexit.
RATIONALE
It is important at the outset to understand the rationale for this legal corner stone
of Brexit, which began life as the Great Repeal Bill.3The nomenclature was
singularly inappropriate for a measure that repealed little, and served primarily
3 J. Simson Caird, Legislating for Brexit, the Great Repeal Bill, House of Commons Library
Briefing Paper Number 7793, 21 November 2016.
320 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(2) MLR 319–366
Paul Craig
to convert the EU legal acquis into UK law. The change of nomenclature was
therefore warranted.
The rationale for the legislation is readily apparent.4The UK has been a
member of the EU since 1972, and many areas of life are regulated by EU
law. Directives have already been transformed into UK law. There is, however,
much EU law, such as regulations, that is directly applicable, taking effect in
domestic law when enacted by the EU, without the need for further national
legislation. Section 2(1) of the ECA furnished the legal foundation for direct
applicability and direct effect within the UK constitutional order.
The regulatory architecture in any area is typically an admixture of treaty
provisions, directives, regulations and decisions. It is, moreover, composed of
EU legislative acts, in conjunction with delegated and implementing acts.5
It would in theory be possible to consign this regulatory material to the legal
dustbin in the event of Brexit. This would, however, lead to chaos. The existing
EU rules regulate matters from product safety to creditworthiness of banks,
from securities markets to intellectual property and from the environment to
consumer protection. There cannot simply be a legal void in these areas, and
pre-existing UK law will often not exist. Consigning such legal rules to the
legal scrap heap would also be irrational, since there is much that the UK
helped to fashion.
This is the rationale for the EUWA. The foundational premise is that the
entirety of the EU legal acquis is converted into UK law. Parliament can then
decide, in two stages, which measures to retain, amend or repeal. Stage one is to
ensure that the EU rules retained as domestic law are fit for legal purpose when
we leavethe EU, since there may be provisionsthat do not make sense in a post-
Brexit world, such as reporting obligations to the Commission, which must be
altered by exit day. Stage two is the period post-Brexit, when parliament can
decide at greater leisure whether it wishes to retain these rules.
The temporal frame of the EUWA has, however, been affected by the
Withdrawal Agreement concluded between the UK and the EU.6The EUWA
is framed throughout in terms of ‘exit day’, which is defined in section 20(1) to
be 29 March 2019 at 11.00pm. This can be altered by ministerial regulation to
ensure that the date and time specified for exit cohere with the date and time
when the treaties cease to apply to the UK.7Such ministerial regulations will
have to be issued because the Withdrawal Agreement provides for a transitional
period that runs to 31 December 2020, with the possibility of one extension
thereafter, during which the UK remains bound by EU law. The UK will
also remain bound by some aspects of EU law if there is a need to invoke
the backstop in relation to Northern Ireland because a trade agreement that
obviates the need for this has not yet been agreed. The references to exit day
in the subsequent discussion should be read with this in mind.
4 Leg islating for the United Kingdom’s Withdrawal from the European Union, Cm 9446 (2017)
at [1.13].
5 Arts 289–291 TFEU.
6 Ag reement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland
from the European Union and the European Atomic Energy Community, 25 November 2018
(Withdrawal Agreement).
7 EUWA, s 20(4).
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(2) MLR 319–366 321
To continue reading
Request your trial