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Both Christopher Muttukumaru CB (here) and I (here) have already commented on some aspects of the Great Reform Bill that has been promised by the Prime Minister in her speech to the Conservative Party conference.
This post sets out some further serious legal and policy challenges that will have to be tackled in the Bill.
These challenges arise because of the Government’s acceptance that, given the impossibility of revising all areas of our law affected by EU law before Brexit and the need to avoid a legal black hole, the substance of EU law will need to be retained post-Brexit until Parliament can get round to reviewing or amending it. There seems to be a political consensus across the Brexit spectrum that that is the right approach in principle.
However, delivering that approach is far more difficult than it might sound. The comparison is sometimes made to the position of former UK colonies as they achieved independence (who typically chose on independence to retain existing colonial laws until their new legislatures were able to reform them). But the exercise is in fact far more complex than that.
To understand why that is so, it is necessary to recall some basic points about EU law.
First, the EU Treaties themselves create a range of rights and obligations affecting Government and private parties that are directly effective in, and have profound effects in, domestic law (examples include many aspects of the four freedoms, the competition rules, and so on). But whatever Brexit means, it must mean no longer being subject to the EU Treaties.
Second, EU law requires certain remedies for breaches of EU law obligations: these include the general right to effective protection, and in particular the right to damages (eg for manifest and serious failure to implement EU law obligations and for breaches of the competition rules), the right to repayment of tax levied in breach of EU law, and the right to injunctive relief.
Third, any EU legal instrument is to be interpreted against the background of fundamental principles. These include, among many others, principles such as non-discrimination on grounds of nationality, proportionality, achieving the single market, the prohibition of abuse of right, and (in the tax field) fiscal neutrality. Those principles also apply to national measures, both legislative and administrative, that give effect to EU law obligations (such as legislation implementing EU directives and regulatory and administrative decisions in areas governed by EU law): and they are combined with a principle that (so far as at all possible) all national law is to be construed so as to comply with those EU obligations, and that even where it does not, private parties are entitled to assert those non-implemented obligations against the State. Many fundamental principles of EU law are set out in the Charter of Fundamental Rights, which includes not just principles derived from the European Convention on Human Rights (in relation to which the Human Rights Act 1998 will continue to have effect) but also a number of principles drawn from the case-law of the European Court of Justice (such as the right to good administration, to take just one at random).
Fourth, much EU regulation involves a complex web of decision-making as between national and EU authorities, with decisions by EU and other Member State authorities being given effect to or recognised in national law: medicines regulation is a good example.
Against that background, it can be seen that any attempt to maintain the substance of EU law post-Brexit needs to grapple with some difficult and important questions. These are just some.
(a) To what extent will UK courts, in interpreting the “preserved” EU law provisions, be permitted or required to follow post-Brexit decisions of the European Court of Justice on the meaning of those provisions? On the one hand, following such later interpretations amounts to giving continued effect to decisions of the ECJ, and to do so in a situation where the UK will not have been able to argue for its preferred approach before the ECJ. On the other hand, not following them allows divergences to grow between EU and UK law in areas where there might be much to be said for trying to maintain consistency in order to facilitate trade and to avoid UK companies with significant EU exports from the costs of having to comply with two different regimes.
(b) Will those parts of the Treaties that confer directly effective rights be preserved? Removing them would amount to major legal change and would have knock-on implications that would require careful thinking-through; but preserving them (and in particular ones that reflect EU objectives such as non-discrimination) would seem difficult to reconcile with not being in the EU.
(c) Are the fundamental rights and principles set out in the Charter to remain part of UK law, at least in relation to the “preserved” areas of EU law?
(d) Where substantive rights and obligations are retained, to what extent will UK courts be required to interpret them consistently with EU law principles? If they are so required, that would lead to odd results where the principle is one that sits uneasily with our no longer being in the EU. If they are not, that will amount to a substantial but highly uncertain change in the right/obligation supposedly being preserved. (An example here is the EU competition rules, which are interpreted against the background of the objective of completing the single market, resulting in a strict approach to restrictions of parallel imports between Member States; the world of VAT is also full of examples where the meaning of VAT provisions is significantly affected by general EU law principles.)
(e) Will national rules passed pre-Brexit to implement EU law obligations such as directives still, post-Brexit, be subject to the principle that they are required to be interpreted, if possible, so as to comply with those (no longer existing) obligations? What happens when those EU directives are amended post-Brexit?
(f) Will remedies provided for by EU law (including remedies against the State) be retained?
(g) What is to be done about regimes that give effect to or recognise decisions of EU authorities or other Member States?
(h) What will the continuing effect be of Commission and other EU guidelines and recommendations (a key part of the administration and interpretation of many EU law regimes)? What happens as those guidelines and recommendations develop post-Brexit?
These are only some of the issues that need to be decided. Refusing to decide them would lead to such serious uncertainty that it is hard to see how it would be consistent with the rule of law (and on a more mundane level the uncertainty would harm vital sectors of the UK economy, such as pharmaceuticals, agriculture, telecommunications, and financial services). But deciding them will involve complex and case-by-case analysis of the implications of the different options and, in many cases, important policy choices with a significant impact on business and private citizens. And, as will be clear, these decisions will include decisions about whether UK citizens will continue to have the benefit of various fundamental rights and remedies that they currently enjoy as a matter of EU law.
As my earlier blog (here) pointed out, Parliament will, when it considers the Great Repeal Bill, need to consider carefully the extent to which it is prepared to allow Ministers to take such decisions and how it will scrutinise them when they do: there are profound issues here for the rule of law and for the role of Parliament in determining the basic rights and obligations of the citizen.