Clause 26 of the European Union (Withdrawal Agreement) Bill 2019-20: An Exercise of Constitutional Impropriety?

Prof Theodore Konstadinides (School of Law, University of Essex) and Riccardo Sallustio (Solicitor, Grimaldi SL LLP)

The European Union (Withdrawal Agreement) Bill 2019-20 will pave the way for the UK to ratify the UK-EU Withdrawal Agreement and thus depart from the European Union (EU) soon thereafter, having received its third reading in the House of Commons just last week. This contribution examines certain major consequences deriving from the Bill becoming law and, in particular, the controversial, but little discussed Clause 26 which (as Lord Pannick remarked in a recent article in the Times) requires particularly careful scrutiny.

Clause 26 introduces in Section 6 of the EU (Withdrawal) Act 2018 new subsections (5A) through (5D) that allow Ministers of the Crown to issue regulations to any “relevant court or tribunal” on how to interpret and even to disapply EU retained case law as well as domestic case law which relates to EU retained case law. The word ‘relevant’ seems to refer only to those courts that were meant to be bound by decisions of the CJEU on interpretations of retained EU law prior to exit day / implementation date. Although the scope of the respective regulations is not defined in the Bill, when added on to the existing Section 6 of the EU (Withdrawal) Act 2018, it can be argued that they shall not apply to the Supreme Court, or the specific circumstances when the High Court is not effectively the highest legal court. As these courts are not bound to interpret retained EU law in line with Court of Justice of the EU (CJEU) decisions, they can surely decide not to follow them on the same basis as they decide not to adhere to one of their own precedents. The phrase “relevant court” in Clause 26 thus suggests that these regulations probably cannot apply to the Supreme Court, although this is not clarified in the wording of the Bill and can be the subject of speculation.

Beyond prescribing the extent to which a court may not be bound by retained CJEU case law, a Minister of the Crown may further specify the test that judges must apply in deciding whether or not to depart from CJEU case law or relevant considerations in applying the respective test. It would not, therefore, be an exaggeration to say that the power conferred upon the executive under Clause 26 of the EU (Withdrawal Agreement) Bill to interpret the case law of the CJEU and related domestic case law is rather unprecedented. This was also pointed out by Ruth Cadbury MP and Joanna Cherry QC MP during debate on the Bill in the House of Commons. What is more, Lord Pannick, Baroness Taylor of Bolton, Lord Beith and Lord Anderson of Ipswich have moved an amendment of Clause 26 which proposes to remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the CJEU and by reference to what test.  

Judicial independence

Courts are not pre-empted from choosing how to decide future cases involving, for instance, CJEU past precedent dealing with the scope of general principles of EU law. Nevertheless, we argue in this post that the enactment of Clause 26 would have negative implications both internally and externally. First, Clause 26 would raise, at the domestic level, constitutional concerns over the protection of the rule of law in the UK and its subcomponents including legal certainty, the separation of powers and judicial independence. More specifically, Clause 26 appears to go against the spirit of the statutory duty on government ministers in accordance with Section 3(5) of the Constitutional Reform Act (CRA) 2005 to uphold the independence of the judiciary, barring them from trying to influence judicial decisions. This is of course rather paradoxical considering that in 2017, Lady Hale mentioned that ‘in a recent survey of thousands of judges from 26 European countries, in six countries the judges’ perception of their own independence scored more than nine out of ten: the United Kingdom was one of those countries.’ At the same time, we need to acknowledge that the CRA wording is subject to interpretation since it neither provides a definition of judicial independence nor does it articulate the degree of independence possessed by a judge or what is perceived to be a threat to judicial independence.

The above sentiment aside, the compatibility of Clause 26 with Article 6 ECHR that requires that a court be independent is at best questionable. Clause 26 would appear to impair the very notion of a “tribunal” that should have the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party as established in Van De Hurk v. The NetherlandsHence it runs the risk of being found not in accordance with Article 6 of the ECHR if challenged. Notably, the Government’s memorandum on compatibility of the Bill with the ECHR does not address Clause 26. The executive’s position is that the Clause does not impinge on any ECHR right.

Duty to give reasons

As mentioned, under Clause 26, Ministers are bestowed with overly broad and subjective powers to determine the extent to which judges are to be bound by retained EU case law. It is worth highlighting that under Clause 26, Ministers do not need to lay a statement setting out the reasons for the respective regulations explaining why this would constitute a proper and fair course of action. This is somewhat in contrast with the public law proposition behind the duty to give reasons that decision-makers must act for proper purposes. Although there is no general duty to give reasons at common law, reasons will be required where they are necessary to allow the courts concerned to scrutinise the administrative decision effectively. While Ministers are required under Clause 26 to consult with the chair of the relevant court or tribunal prior to enacting the relevant regulation, primary legislation sets no limits on how they can exercise such powers or the extent to which they need to explain points of fundamental importance. We can, therefore, assume that a regulation can go well beyond a technical interpretation and determine a change that distorts the meaning of EU law.

But, beyond politicians interfering with the work of judges, why is distorting the meaning of EU law significant, especially since the UK is on its way out of the EU? One way of explaining the rationale behind Clause 26 is allowing the executive to decide that a particular interpretation of retained EU law should be changed. In that respect it constitutes a means of over-turning established interpretations of retained EU law rather than overturning retained EU law itself – perhaps to cover for when the relevant sunset clause runs out. For example, the notion of ‘worker’ is based on established CJEU case law which would be used by UK courts when interpreting retained EU law (Directive 2003/88/EC on the organisation of working time) to ascertain the status of a parcel courier as a worker. The Government, which may adopt a particular stance on protecting the rights of people working in the gig economy, may wish to change the CJEU’s interpretation given to the term ‘worker’ (to include or not a contractual right to use a substitute to perform all or part of their work), but without enacting legislation. Hence, Clause 26 would enable the Secretary of State for Employment to adopt delegated legislation to make provision for the courts to no longer follow the meaning of worker in CJEU case law and to give it a different meaning instead (i.e. that by sending a substitute they cannot be regarded as a worker in accordance with the Employment Rights Act 1996).

An orderly Brexit

It is well understood that the focus of the EU (Withdrawal) Act 2018 and of relevant provisions of the EU (Withdrawal Agreement) Bill 2019-20 is on the winding down of the application of EU law in the domestic order. This is different however from allowing the enucleation of EU retained case law or the evisceration of EU retained law from related domestic case law through ministerial acts. Although the UK will indeed be leaving the EU, the risk of distorting EU law upon the Bill becoming law is still significant because it frustrates the principal aim of the EU (Withdrawal) Act 2018, which is to allow for an orderly exit of the UK from the EU.

While of course the scope of the powers conferred upon government ministers by Clause 26 is, obviously, less wide than the Henry VIII powers set in the EU (Withdrawal) Act 2018, there is no limitation on the nature of the case law that may be affected by a ministerial regulation. As such, a minister, for instance, would be able to disapply or grossly misinterpret EU retained case law and related domestic case law even if the subject-matter engages with the protection of fundamental rights (such as citizens’ rights). Such an alteration, of course, would need to be subject to compliance with common law rights, human rights scrutiny and the rule of law.

Legal certainty

The fact that ministerial powers under Clause 26 are subjective and can be exercised in the abstract and that no statement underlying the purpose of the regulation is required further imply that it would be very unlikely for the ministerial intervention to be tested against reasonableness under Wednesbury (or proportionality which although not a general standard of review could come into play through an application of the principle of legality or if Article 6 ECHR were engaged) in a judicial review challenge. In such circumstances, it may be difficult for the court to engage in questions of weight and balance, which would ordinarily need to be determined in the context of particular factual and legal circumstances.

From a practical standpoint, the enucleation/evisceration of EU retained case law from domestic case law may prove at times to be problematic and create incoherent outcomes. There are concerns over compliance with legal certainty requirement as the powers under Clause 26 can be interpreted broadly and inconsistently. For instance, a regulation can, in practice, also apply to a dispute involving a principle established by the CJEU in its case law that is already pending at the time of its enactment.

EU rule of law protection

While it would be logical to assume that Clause 26 would only come into effect after the end of the implementation period (i.e. when the supremacy of EU law under the Withdrawal Agreement is no longer in effect, except for some exceptions such as Clause 13(2) of the revised Protocol on Ireland/Northern Ireland), its enactment would be short-sighted from a UK negotiating position in the context of a future trade relationship with the European Union. Indeed, the EU has been increasingly seeking that free trade agreements include a full ‘human rights clause’ covering also the respect of the rule of law (see the Framework Agreement with the Republic of Korea, Article 1(1) and the Cotonou Agreement with ACP countries, Article 9(2)) in order to ensure that its external policies are not applied in violation of the rule of law. From a more general perspective, it would be naïve to believe that respect for the rule of law in the EU would be merely a prerequisite for the protection of the fundamental values listed in Article 2 Treaty on European Union (TEU) and for upholding all rights and obligations deriving from the Treaties and would not have any role in the EU’s external relations.

On a more general level, the proposal for Clause 26 ignores the recent focus of the EU institutions on the rule of law and will most likely not go unnoticed in Brussels. The new EU Commission is pursuing a rule of law strengthening project following the July 2019 Communication on “Strengthening the Rule of Law within the Union – A blueprint for action” which received in the last few months wide support from Member States introducing the concept of rule of law conditionality. The new European Parliament has also recently focused on separation of powers and independence of the judiciary in Poland in the context of the relevant Article 7(1) TEU procedure. In this prevailing mood, the UK’s respect for the rule of law would be high on the agenda when the UK-EU trade relationship is for approval by the Member States and the European Parliament during the course of 2020.

The fact that the UK government will soon ‘get Brexit done’ does not render it free from facing constitutional propriety, its duties under the Withdrawal Agreement and the European rule of law. 

The authors would like to thank Alison Young for her comments and suggestions. The post first appeared on the UK Constitutional Law Association Blog and can be accessed here.

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