Oh, What a Tangled Web We Weave… The EU (Withdrawal) Bill 2017-19 and Human Rights post Brexit: Part 1
The EU (Withdrawal) Bill had its first reading in the British House of Commons on 13 July 2017, and is due to have its second reading on 7 September 2017. The Bill suggests that the already fraught relationship between the UK and EU human rights law is about to get much more confusing. In a two-part blog post, I will seek to impose some order on the confusion. In this first post, I will set out the consequences for rights protection in the UK of the Bill as it currently stands. In the second post, I will evaluate this position.
The EU has two main sources of human rights protections: the Charter of Fundamental Rights and general principles of EU law, as found in the constitutional traditions common to the Member States and the European Convention on Human Rights. They are a strong source of rights protection in the UK: both are capable of having direct effect in UK law without any domestic implementing measures, both take priority over inconsistent national law, and both can (although need not) apply horizontally. However, both general principles and the Charter only apply to matters within the scope of EU law. In addition, not all of the provisions of the Charter are rights. Some are ‘principles’, which can be used to interpret EU legislation, but do not form free-standing rights which have direct effect. It can be difficult to distinguish between principles and rights, as well as to delineate those Charter rights which do and do not have horizontal application. It can also be difficult to separate out Charter rights and general principles – the Charter and general principles are influenced by each other, such that the Court of Justice of the European Union (CJEU) often refers to both when reaching its conclusions. This does not mean that the Charter codifies the general principles of EU law. Rather that the two influence each other, developing in a coterminous manner.
It is well-known that the Withdrawal Bill will repeal the European Communities Act 1972, the pipeline through which EU law flows into the UK (clause 1). However, the Bill will also ensure that the provisions of EU law which flowed through the pipeline up to exit day will remain in place on exit day, be they EU Directives implemented by either legislation or secondary legislation, referred to as ‘EU-derived domestic legislation’ (clause 2); EU Regulations, referred to as ‘direct EU legislation’ (clause 3) and directly effective provisions of EU law (clause 4). However, the Charter is specifically excluded by clause 5(4), which states that it ‘is not part of domestic law on or after exit day’. However, the same fate does not befall the general principles of EU law. These principles will remain part of domestic law on exit day, as will the reference to the Charter in any case law interpreting direct EU legislation and EU-derived domestic legislation, which will be handily re-interpreted as references to the general principles of EU law (clause 5(5)).
If that were not confusing enough, a further bifurcation arises when we examine whether these principles will continue to be able to disapply national law. The principle of the supremacy of EU law will continue post exit day, but only as regards laws enacted prior to exit day, or to modifications of laws enacted prior to exit day when it was clear, from that modification, that there was an intention for that law to continue to be subject to the supremacy of EU law (clause 5(1)-5(3)). However, clause 5(6) refers to further exemptions to be found in Schedule 1 of the Bill. Clause 3(1) of Schedule 1 of the Bill makes it clear that, from exit day onwards, there will be no ‘right of action in domestic law…based on a failure to comply with any of the general principles of EU law’. Moreover, under clause 3(2) of Schedule 1, no court may disapply, quash, or decide that action is unlawful because it is incompatible with general principles of EU law.
This leaves us with a three-fold future for EU human rights law post Brexit:
- The Charter in and of itself has no effect in domestic law at all;
- The general principles of EU law do have an effect in domestic law, but they cannot be used on their own to disapply, quash or to declare unlawful any provision of domestic law;
- EU derived domestic legislation and EU direct legislation and other directly effective principles of EU law, which are interpreted in line with the general principles of EU law or the Charter, re-classified as a reference to general principles of EU law, can be used to disapply legislation enacted prior to exit day, but not legislation enacted after exit day, unless it is a modification to legislation enacted prior to exit day and there is a clear intention expressed in the modification to allow for this legislation to continue to be subject to the supremacy of domestically incorporated EU law.