For what is inevitably a framework document, to be followed by a promised tranche of sectoral Bills and a wide and long-term run of statutory instruments, the European Union (Withdrawal) Bill is at first sight surprisingly lengthy. Its complexity and specificity will have given immediate reassurance to some in industry and elsewhere who voiced pre-publication concerns that the Bill would simply grant the Executive open and wide-ranging powers and would provide very little of the detail itself.
Despite its length and complexity, however, it will quickly have become apparent to readers both that the Bill does grant a number of extremely wide powers and also that the fundamental concepts determining the parameters of those powers are alarmingly vague.
Businesses and others seeking to understand what the immediate Brexit-day impact will be on legislation in their areas of commercial or other interest will find that key provisions of the apparent complexity of the Bill depend on concepts which are inherently imprecise, and this makes it impossible to determine the practical result of the structure as a whole with clarity or certainty.
This is most obviously true of the concept of “EU-derived domestic legislation” which underpins clause 2 (Saving for EU-derived domestic legislation) and which flows through to all provisions about “retained EU law” as a result of the definition of that term in clause 6(7).
Simplifying slightly, there are four limbs to the definition of EU-derived domestic legislation:
- Instruments made under section 2(2) of the European Communities Act 1972 (ECA 1972) (see comment on section 2(2) at the end of the blog).
- Other enactments made “for a purpose mentioned in” section 2(2).
- Legislation “relating to anything” made under section 2(2) or done for a purpose mentioned in section 2(2).
- All legislation “relating otherwise to the EU or the EEA”.
The potential width and lack of clarity about what the last three limbs cover, and especially the fourth limb, make it difficult for the detailed rules in the rest of the Bill to be applied with the degree of precision that their complexity and specificity appears to suggest. This in turn will make it difficult for businesses to form a clear picture of the implications of the saving provisions of the Bill for their individual commercial sectors.
There is simply no way of compiling a complete and authoritative list of all the enactments (remembering that “enactment” can mean any part of an Act or statutory instrument) which satisfy the conditions in clause 2(2). Transposition notes have accompanied some legislation to which clauses 2(2)(b) to (d) would apply, but there has been insufficient rigour and consistency in their publication to rely on them as a complete record. And, unlike retained direct EU legislation under clause 3 and Schedule 5, the government is not offering any help in the form of a statutory duty on the National Archives to produce an authoritative list.
So businesses will face uncertainty in relation to the application of clause 2 unless it is further refined and clarified in the course of the Bill’s passage through Parliament.
Of course, it is only the clause 2(2)(a) class of EU-derived domestic legislation (section 2(2), ECA 1972 instruments) that would lapse automatically on the repeal of the ECA 1972. So in so far as clause 2(1) preserves the effect of domestic legislation, in relation to clauses 2(2)(b) to (d) it achieves nothing that would not have been achieved by silence: an Act inspired by our membership of the EU remains an Act even after our withdrawal unless repealed in the normal way. The problem is, of course, that clause 2 paves the way for a series of savings, exceptions and propositions about interpretation and other matters set out later in the Bill, applying to all classes of EU-derived domestic legislation.
So businesses cannot simply take the view that all EU-derived domestic legislation will continue to apply (so long as it works), until there are express policy changes or exclusions, and ignore clause 2: they will need to identify all the legislation to which the clause applies in order to understand the reach and effect of the later provisions of the Bill.
Another significant area of uncertainty in the Bill is the effect of clause 3 (incorporation of direct EU legislation) in relation to EU legislation which is partly but not wholly in force at Brexit day: given the frequent complexity of transitional arrangements for the commencement of directly applicable EU legislation, the simple “so far as operative” is insufficiently clear, and the expansion on the concept in clause 3(3) appears to provide more questions than answers. For further information, see Practice note, EU law and its interpretation in the UK.
So before one comes to the obvious uncertainties of political interest in the Bill (notably what counts as a “deficiency in retained EU law” for the purposes of triggering the main power to make delegated legislation in clause 7), there are some serious technical issues that will make it difficult for businesses and others to understand the intended purpose and effect of the Bill without refinement during the Parliamentary process.
Section 2(2) of the European Communities Act 1972
While section 2(1) of the European Communities Act 1972 (ECA 1972) provides that directly applicable law such as EU regulations has direct effect in the UK, section 2(2) is used to give effect in the UK to other types of EU law, such as directives, through domestic legislation.
However, in practice, not all EU laws that are not directly applicable have been implemented under section 2(2): some have been wholly or partly implemented by an Act of Parliament and some by subordinate legislation under domestic vires (and at one stage there was an intra-government directive that domestic vires should be used in preference to section 2(2) where available).