The phoney war is over. Theresa May has triggered Article 50. The clock is ticking. But clarity and legal certainty remain elusive

Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School)

In her letter to Donald Tusk the Prime Minister outlined the UK’s starting position in negotiations with the EU. The EU Council of Ministers responded by producing draft negotiating guidelines (to be confirmed by the European Council at the end of April). These guidelines create the framework within which negotiations on withdrawal, and those on the future relationship between the UK and the EU, will occur. Meanwhile, a White Paper on the Great Repeal Bill was presented to Parliament, promising on the one hand to repeal the European Communities Act (ECA) and end the supremacy of EU law in the UK, and on the other to convert the acquis communautaire into UK law, so that ‘EU-derived rights’ (as we will need to get used to calling them) will, as far as possible, be unaffected.

The opening exchanges between the UK and EU have generated a lot of comment. Much of it has focused on the unlikely subject of Gibraltar (Michael Howard’s crass evocation of the Falklands conflict will have done nothing to lower simmering tensions). In relation to the White Paper, most attention has been devoted to the role of Parliament and the devolved assemblies. Rather less attention has been paid to many of the EU law aspects. In this short note, I focus on those. I first consider what new light has been shed on the way in which the Article 50 negotiations will proceed, drawing attention to the host of issues which remain unanswered. I then consider the EU law questions raised by the repeal of the ECA, and the conversion of the acquis into UK law. Michael Ford has already commented on this blog on the applicability of judgments of the European Court of Justice in the post-Brexit era; so there is no more on that subject here.

My overarching concern is that the Government, in particular in the White Paper, has failed to provide a clear sense of the size of the task which lies ahead. It is impossible to know whether this is because the Government itself does not appreciate the magnitude of the challenge, or because it is trying to conceal the difficulties. The Government has, for months, struggled to articulate just what Brexit might mean, and has made a series of disparate promises which a range of different constituencies have, if so minded, been able to rely on, or cling to. It will now start making hard choices. It has not prepared the ground well.

Theresa May’s letter set a conciliatory tone, using much more constructive rhetoric than hitherto. She emphasised her desire to build a ‘new deep and special partnership’ with the EU. She expressed the belief that ‘it is necessary to agree the terms of our future relationship alongside those of our withdrawal from the EU’. And she made it clear that the ‘no deal’ scenario is ‘not the outcome which either side should seek’. This is not the tone avid Brexiteers had been expecting.

The EU responded with a draft of the negotiating guidelines which are to ‘define the framework for negotiations under Article 50’ (though note that the European Council, a little ominously, reserves to itself the power to ‘update these guidelines in the course of the negotiations as necessary’). Article 50 does not afford a role to the withdrawing state in the drafting or scope of these guidelines; like them or not, the UK will have to abide by them. The Council repeated ‘its wish to have the UK as a close partner in the future’. But it is immediately clear that the relationship will be very different to the one we have all become used to. In the very first paragraph of the draft guidelines there are references to ‘the integrity of the Single Market’ and to the fact that there ‘can be no “cherry picking”’, and a clear statement that a non-member of the Union ‘cannot have the same rights and enjoy the same benefits as a member’. The guidelines go on to say that withdrawal negotiations ‘will be conducted as a single package’; ‘individual items cannot be settled separately’; and ‘there will be no separate negotiations between individual Member States and the United Kingdom’ on matters pertaining to its withdrawal.

The disagreement relating to the sequencing of the negotiations will be one to watch over the coming weeks and months. Article 50 provides some guidance here, with paragraph 2 providing that the withdrawal agreement with, in this instance, the UK, shall be negotiated and concluded ‘taking account of the framework of its future relationship with the Union’. On the basis of this wording, I have argued that the European Council should have agreed to commit to negotiations with the UK in relation not only about a narrow withdrawal agreement, but also about a broader agreement on the future relationship between the UK and the EU (so that the substantive reality of Brexit is known by the end of the two year negotiating period). The EU has, however, opted for a phased approach to the negotiations, seeking first to ensure that there is an orderly withdrawal. In the light of the wording of Article 50, perhaps reluctantly it has conceded that ‘an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations’, adding that the EU and its Member States ‘stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase’ (see para.4). In this instance it appears as though the UK has the law on its side; but there is little it can do to force the EU to broaden the scope of the negotiations before it is ready to do so.

Many other key elements of the negotiation remain shrouded in uncertainty. The draft guidelines confirm that the allocation of responsibilities between the various EU institutions will be as per the European Council’s statement in December. The statement that the withdrawal negotiations ‘will be conducted as a single package’ casts some doubt on the ability to provide reciprocal guarantees to EU and UK citizens affected by the withdrawal at an early stage (though both sides restate the position that the rights of citizens are, to quote the draft guidelines, a ‘matter of priority for the negotiations’). If it is not possible to agree and conclude an early deal on citizens’ rights, it will be difficult to avoid the conclusion that citizens are being used (by both sides) as bargaining chips in the negotiations. References to transitional arrangements, and to the consequences of withdrawal without a deal, are, at best, opaque. There is nothing on the likely effect of the elections in France and Germany on the timing of the substantive negotiations. Nor is there any mention of the revocability of Article 50 (on this, see the European Parliament’s Resolution on the negotiations with the United Kingdom), or of the rules surrounding the conclusion and ratification of any deal on the EU side, in particular in relation to the whether there is a need for national Parliaments to ratify the withdrawal agreement before it is able to come into effect. These issues are all complex. There are differences between the preferences of the EU and the UK. My fear is that procedural disagreements will encroach on the already limited time within which a range of crucial substantive questions relating to the UK’s relationship with the EU need to be resolved.

While the negotiations with the EU proceed, the UK will also have to make a set of changes to domestic law in order to prepare for life outside the EU. It is clear that the UK remains a full member of the EU, and that all the rights and obligations of EU membership remain in force, until exit. The first step will be the repeal the ECA ‘on the day we leave the EU’. It is worth quoting the key statement of principle from the White Paper (in para. 1.12) in full:

‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before.’

On the face of it, this seems simple enough. Repealing the ECA, notwithstanding the constitutional status which some judges have claimed that it enjoys, is indeed straightforward. But, the technical task of converting the existing acquis into UK law is much more complex. There is a lot of work to be done. As has been highlighted by many, the White Paper envisages that many of the ‘mechanical’ changes, involving ‘correction’ of EU-derived law ‘to rectify problems occurring as a consequence of leaving the EU’, will be made by secondary rather than primary legislation, leading to concerns, exacerbated by the Government’s determination to pursue the Miller litigation all the way to the Supreme Court, about the future relationship between Parliament and the Executive. Such a broad reading of executive power, and the widespread use of so-called Henry VIII clauses, sits uncomfortably with the democratic appeal of the Leave Campaign’s ‘take back control’ mantra.

Let there be no confusion about the scope of the Government’s promise. The intention is not to entrench EU-derived rights into domestic law, but merely to create clarity during the time of transition. The point of Brexit is that UK will, once it has left the EU, be able to decide which parts of EU-derived law to keep, amend or repeal. Thus, EU-derived rights which are converted into domestic law, may soon disappear. The clarity and certainty promised in the White Paper, which appear to provide comfort to businesses and citizens concerned over the effects of Brexit, are not intended to endure.

In the light of this, it might appear overly legalistic to be concerned with the details relating to the conversion of EU-derived rights into UK law. The White Paper repeatedly states that ‘as a general rule’, or ‘wherever possible’, the same rules and laws will apply on the day after we leave the EU as before. A first reading of Chapter 2 of the White Paper seems to confirm that ‘unless and until domestic law is changed by legislators in the UK, legal rights and obligations in the UK should where possible be the same after we have left the EU as they were immediately before we left’ (at 2.7). There are, for example, ‘rights in the EU Treaties that can be relied on directly in court by an individual, and the Great Repeal Bill will incorporate those rights into UK law’ (2.11). But what exactly do we know about which rights will, and will not, be converted?

The White Paper distinguishes between regulations, directives, Treaty-based rights, and the case law of the European Court of Justice, showing an awareness of the different ways in which these operate in domestic law. It identifies ‘different types of legal corrections’ which would need to be made once we leave the EU, giving examples, in Chapter 3, relating to ‘references to “EU law”’, to the ‘involvement of an EU institution’, and to ‘information sharing with EU institutions’.

One searches in vain for a clear statement relating to the exceptional circumstances in which it may not be possible to guarantee rights. And yet, these must exist. It surely cannot be the intention of the UK to convert the right of all EU citizens, derived from the directly effective Article 21 TFEU, ‘to move and reside freely’ within the territory of the UK. Equally, it surely cannot be the aim that those who import goods into the UK are able to challenge ‘quantitative restrictions on imports and all measures having equivalent effect’, the sort of right which might be derived from Article 34 TFEU, the key provision on the free movement of goods. These are, without question, fundamental parts of the EU legal architecture. If they are not reproduced in UK law, there will be a huge change to the scope of EU-derived rights.

The White Paper makes no reference to these rights. In fact, one needs to search through the document with some care before one even discerns that there are rights which will not be converted. Two reasons are given. First, some rights might become ‘irrelevant’ (see 2.9 and 2.23). Second, there is a hint that some legislation cannot simply be incorporated into UK law, for example where it is predicated on UK membership of, or access to, an EU regime or system (see 1.14).

Let me deal first with ‘relevance’. It is probably unwise to subject paragraph 2.9 to rigorous scrutiny.[1] It includes the statement that ‘a substantial proportion of the treaties sets out rules for the functioning of the EU, its institutions and its areas of competence’, suggesting that those are the aspects which are set to become irrelevant; and ends by making what is surely a very different point about the role of the Treaties in assisting in the interpretation of the EU laws we preserve in the UK.

There is also a section on the Charter of Fundamental Rights, which makes it clear that the Charter ‘will not be converted into UK law by the Great Repeal Bill’ (2.23). The burden of the section is to assert that ‘the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK’ (2.25), given the overlap between the Charter and the underlying rights which exist elsewhere in the law. That claim is subject to criticism here. There is, moreover, a potentially troubling reference to relevance. It is said that ‘the Charter only applies to member states when acting within the scope of EU law, so its relevance is removed by our withdrawal from the EU’ (2.23). This is a curious formulation. It opens the door to arguments that a whole swathe of EU law rights may not be converted, on the grounds that withdrawal from the EU makes them irrelevant. In fact, it is difficult to see that there is any basis for distinguishing between ‘relevant’ and ‘irrelevant’ rights. Any attempt to suggest that there are categories of rights which are no longer relevant seems certain to meet fierce resistance.

The second reason why rights may not be converted withstands greater scrutiny. But it is not expressed clearly, and it is again hidden away in the White Paper. Paragraph 1.14 states that ‘legislation may refer to the involvement of an EU institution or be predicated on UK membership of, or access to, an EU regime or system’, meaning that ‘once we have left the EU, this legislation will no longer work’. Further in paragraph 1.16, ostensibly concerned with timings, it is said that ‘there is much that can be taken forward during those negotiations, but some legislation will necessarily need to await their conclusion’. Taken together, these hints, which resurface in paragraph 3.12, suggest that the conversion of some EU-derived rights is contingent on the outcome of the withdrawal negotiations. This is perhaps no more than a statement of the obvious. Whether or not a whole host of EU-derived rights will survive – in particular those which rely on reciprocal commitments made by the UK and the other Member States – does indeed depend on the progress of negotiations with the EU. But it is deeply concerning that the Government does not say this more openly. We are left without a clear sense of the rights which will, or might, be lost as a result of withdrawal.

The reality is that the conversion of EU-derived law derived into UK law is a complex, politically charged question. The legal regime will, inevitably, be much changed at the point of leaving the EU; and, as stated above, will be subject to further change once we have left the EU, as the UK decides which elements of the law to keep, amend or repeal. There are, of course, technical ‘corrections’ which will need to be made; and these might fairly be the subject of secondary, rather than primary, legislation. But there are also political questions to be resolved, which will determine what Brexit is to mean. The fate of what may be termed ‘internal market related’ rights is certainly not irrelevant, but may well be contingent on the outcome of the negotiations. Any attempt to distinguish between ‘internal market related’ rights and, for example, social rights, which the Government appears to be at pains to convert into domestic law (at least until it decides that they are to be amended or repealed), is fraught with difficulty. The essential argument I make in EU Intervention in Domestic Labour Law (OUP, 2007) is that the internal market and social rationales for many ‘labour law’ interventions (such as the Working Time Directive, the Transfers of Undertakings Directive, and the Posted Workers Directive) are impossible to disentangle. The Government needs to do much more to indicate to us what its strategy and priorities are; and, crucially, to be more open in relation to the loss of rights which Brexit will, or might, entail.


[1] Para 2.9 reads as follow: The treaties are the primary source of EU law. A substantial proportion of the treaties sets out rules for the functioning of the EU, its institutions and its areas of competence. While much of the content of the treaties will become irrelevant once the UK leaves the EU, the treaties (as they exist at the moment we leave the EU) may assist in the interpretation of the EU laws we preserve in UK law.

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