Christopher Muttukumaru CB writes that developing UK legislation to implement the Brexit consensus will be like solving a Rubik’s Cube

30 Nov 2016

This post seeks to cover key aspects of the legislation that will be necessary to give effect to the consensus reached in the Brexit negotiations.

Is the civil service ready for the challenge of implementing Brexit?

1. There has been a great deal of media comment about whether  the UK civil service has the capacity to give effect to the eventual Brexit consensus, whenever the negotiations are completed. Giving evidence to Parliament, three former heads of the civil service have expressed varying degrees of confidence in the civil service’s capability to deliver the outcome effectively.

2. This is scarcely surprising. The scale of the challenge is unprecedented. Moreover, over many years, other pressures such as the need to develop commercial expertise and the increase of powers vested in the EU institutions have resulted in less focus in Whitehall  on EU professionalism.

3. The parliamentary bills which will be necessary to give effect to the Brexit consensus will be complex and will stretch the civil service and Parliament. But the implications are not all doom and gloom. The civil service is a highly professional and disciplined organisation. When, in 2011, the Government announced the Red Tape Challenge to reduce the regulatory burden imposed by UK legislation (excluding EU legislation) , the exercise was received  with scepticism. In fact the civil service, assisted by 30,000 stakeholders, examined every domestic regulatory burden imposed legislatively and came up with plans to amend, revoke or preserve every such burden seriatim. According to the Government, the exercise resulted in 3000 legislative reforms. That was a masterly exercise. But Brexit will outstrip the Red Tape Challenge in its scale and complexity. Lawyers could do a great deal to support the Government in the challenging working environment that lies ahead.

UK parliamentary bills to give effect to Brexit

4. The negotiations with the EU under Article 50 will be multi-layered. The ideal outcome might be intended to be a perfectly solved Rubik’s cube. In fact the colours are unlikely to match and the outcome could be messy. So what should practitioners take into account when mapping the future?

5. By way of preface, the Government’s intention seems to be to introduce a bill or bills in the next session of Parliament. That would imply the introduction of a bill or bills some time after May 2017. But it is far from clear what early introduction would mean in practice, since the bill(s)  could not possibly reach Royal Assent until the negotiations were nearing completion.

6. The first aspect of the implementing legislation would need to reflect the consensus reached with the EU. Once the UK leaves the EU at the international level,  the  European Communities Act 1972, as well as subsequent  Acts of Parliament giving effect to further European treaties, would have no meaning and would need to be repealed.

7. The second aspect of the legislation  would need to reflect the interplay between EU Law and rights and obligations arising under a host of other international treaties which occupy the same fields as EU Law already does, such as in the environmental field. Since the Prime Minister has said that the UK will continue to comply with its international obligations, this is bound to be a significant and complex aspect of the future legal framework.

8. The third aspect would need to reflect any further complexity resulting from the giving of notice of withdrawal from the EEA Treaty. While all 28 EU Member States are also members of the EEA Treaty , it is probable that  Article 127/EEA would need to be triggered by the UK. That must be done by written notice of at least 12 months to the other 30 contracting parties. If withdrawal from the EEA were to necessitate  ratification by any other  Member State in line with its constitutional requirements, and if  consequential  referenda were needed, the UK domestic legislative timescales could need  adjustment.

9. The fourth aspect would need to cover the protection of the first of the three categories  of rights identified by the High Court in R (on application by Miller and others) v Secretary of State for Exiting the European Union, paragraph 58, namely the rights which are capable of replication in domestic law. This is the aspect which most obviously falls within the scope of the Great Repeal Bill first described by the Prime Minister on 2 October. In fact the bill would be far from being merely a repeal bill. As described, it would of course repeal the European Communities Act and subsequent legislation giving effect to later European treaties. But it is also intended to convert the existing body of EU Law into domestic law, pending further review and re-enactment or revision or repeal by virtue of primary or  secondary legislation.

10.  The most intriguing category of rights to be addressed would be the category of transnational rights identified by the High Court, viz, those enjoyed by UK nationals in other Member States. In this regard, there is every sign that a game of cat and mouse will be played out . Self-evidently, the UK Parliament could not legislate for the protection of UK citizens’ rights  in another Member State. But in order to ensure adequate reciprocity, the Government could  decide to play the question long before introducing domestic provision to protect EU citizens’ rights in the UK.

11. To the extent not subsumed under the other aspects identified above, the fifth aspect would be to cover transitional matters. These include transitional provisions that are necessary while a final resolution of a number of issues is reached, for example,  in respect of other international treaties to which the UK is a party which might need renegotiation,   or otherwise, for example, in respect of the role of the CJEU in determining cases already before it at the time of exit.

12. What is clear is that Parliament, contrary to the views of some commentators, will plainly play the pivotal role in the implementation of the new consensus. It cannot be sidelined.

13. The question of how many pieces of UK primary legislation would  be needed remains to be seen. But what is obvious is that primary legislation would  need to be underpinned by a myriad pieces of secondary legislation. Whereas primary legislation would be the object of proper scrutiny , it is not obvious that Parliament would  have the capacity to scrutinise the secondary legislation that would  inevitably be spawned by the Brexit exercise both at the time of exit and subsequently. A question to be addressed is whether the Government might  seek to persuade Parliament that it would  need  Henry VIII powers to amend primary legislation by secondary legislation. At the best of times, a proposal for the use of Henry VIII powers is often contentious , requiring collective, including legal, agreement at ministerial level. But in the current, fevered atmosphere, it is doubtful whether most MPs would accept the inclusion of such powers without significant safeguards against their arbitrary use.

Specific points in the light of the foregoing discussion

14. The UK adopts a dualist approach to implementation of International and EU Law. So, depending on the nature of the  consensus with the EU and EEA, as well as the future relationships to be enjoyed direct with third countries, the legislation (in all probability there will be more than one Act of Parliament) would need to cover at least the following (the list is not exhaustive) :

(a) Provision to reflect the changed relationship with the EU , possibly including some enabling powers of the kind in the 1972 Act itself;

(b) Provision reflecting  withdrawal from the EEA;

(c) Provision regarding the devolved administrations and Brexit;

(d) Transitional provision to reflect the  changed relationships with third countries since negotiations with them cannot begin in earnest while the UK remains a member of the EU. If, as indicated by the UK Government’s treaty website , it is right that the UK has signed some 14000 international treaties, the process of painstaking assessment of read across, if any,  to the UK’s  future legal framework, could be a time-consuming process ;

(e) Provision to make financial payments to the EU both in respect of exit and in relation to future funding payments  if they are the price of continuing access to the Single Market;

(f) Provision as to acquired rights  of EEA citizens in the UK;

(g) Provision as to the UK nationals who are office holders or staff employed by the EU institutions ;

(h) Provision as to health care and social security;

(i) Provision as to the continuing recognition of professional qualifications , of licences to operate cross-frontier and enforcement of standards;

(j) Provision as to cross-cutting subjects such as state aid, competition and public procurement;

(k) Since, according to the Prime Minister,  the Single Market acquis is to be treated as part of domestic law pending future review and amendment or revocation, the question will arise as to how amendments to the relevant provisions made after exit but before review should be handled;

(l) Provision as to the interpretation of EU  laws as they will continue to apply in the UK, including guidance to the UK courts,  as well as treatment of CJEU jurisdiction in respect of transitional cases already before the Court at the time of exit;

(m)  Provision as to enforcement of applicable EU laws if and to the extent that the Commission’s enforcement  role is to be extinguished;

(n) Provision as to membership of any EU agencies or other similar bodies of which the UK is a member , not least provision as to the relocation of any agencies currently in the UK.

15. The Great Repeal Bill has been heralded as the principal  way ahead. It is certainly an eye-catching proposition even if , as is obvious from the foregoing discussion, it is a misnomer.

16. The more detailed legal issues that will need to be addressed in the Great Repeal Bill are beyond the scope of this post.  But the Monckton Brexit blog posts referred to below will help the reader to understand more about the scale and complexity of what lies ahead.

17. In summary, in giving effect to a future Brexit consensus,  the scale and complexity of the legislative tasks ahead for Parliament and the Executive are unenviable. The exercise will require skill, expertise,  imagination and determination, as constructive dialogue with external experts and stakeholders. But unless and until the Government is transparent about its policy and strategic aims – which can, in my view, be achieved without undermining its negotiating strategy –  it will be impossible to assess just how big a legislative challenge lies ahead.

The content of this post was the subject of discussion at Eversheds LLP on 29 November 2016.

George Peretz (11 October) and I (5 October and 31 August 2016 ) have both written about what detailed aspects of the legislation might need to cover. Peter Oliver has written on what the Withdrawal Agreement might contain (20 July). Anneli Howard has written on the need for proper regulatory impact assessments of future legislation (12 July 2016). Panos Koutrakos has written on the problems to be faced in negotiating third country agreements (27 October 2016) , as well as the problems that are likely to be faced by the civil service in that regard .