the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)


Professor
Tamara Hervey, University of
Sheffield, and Professor Steve Peers,
University of Essex
People
who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine
the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won
the general election that year, and where the main debates in British politics are
about bin collections and bus routes, rather than Brexit. With yesterday’s
resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe
where Mrs May either held off calling an election, or held it and won the large
majority she was hoping for, or had successfully pursued the art of compromise
that she referred to in her resignation
speech
.
The latest
big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK
Withdrawal Agreement. In our universe, on 15 May 2019, the UK
government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before
resigning, set
out
the main points of the Bill. Of course, her resignation, and the
earlier news that the Conservative/Labour talks have failed, makes
this much less likely.  However, in
post-EU referendum politics, many futures are possible, including ones we might
not foresee.  A lawyers’ job is to make
sense of the legal texts that seek to express political agreements.
So
this blog post considers some of the possibilities for one of the key elements
of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come
to be known) that would have been tabled in the Mayverse, and might yet be
tabled in our universe: how is the UK going to render its obligations under the
EU/UK Withdrawal Agreement into domestic law? (Other key elements are
considered here.)
Available information at present
At
this time, there is no text of the EU (Withdrawal Agreement) Implementation
Bill in the public domain. What is available is the White
Paper
on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK
Withdrawal Agreement
itself, as well as the documents that surround it,
such as the Preliminary
Joint Report
from the negotiating teams, from December 2017.
Only
two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament
approves the Withdrawal Agreement, government will bring forward the WAB (see
also para 4 which says government will only do this once the Withdrawal
Agreement is approved by Parliament).  The
other (para 149) states:
‘As set out in the preceding chapters of this paper, the Bill
will be the primary means of implementing the Withdrawal Agreement in UK law,
to ensure the Government meets its international obligations as set out in the
treaty, …’
This
makes it sound like the WAB would have treated the Withdrawal Agreement as
ordinary international law.  This is not
what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:
‘(1) The provisions of this Agreement and the provisions of
Union law made applicable by this Agreement shall produce in respect of and in
the United Kingdom the same legal effects as they produce within the Union and
its Member States. Accordingly, legal or natural persons shall in particular be
able to rely directly on the provisions contained or referred to in this
Agreement which meet the conditions for direct effect under Union law.
(2) The United Kingdom shall ensure compliance with paragraph
1, including as regards the required powers of its judicial and administrative
authorities to disapply inconsistent or incompatible domestic provisions,
through domestic primary legislation.
(3) The provisions of this Agreement referring to Union law,
or to concepts or provisions thereof, shall be interpreted and applied in
accordance with the methods and general principles of Union law.
(4) The provisions of this Agreement referring to Union law,
or to concepts or provisions thereof shall in their interpretation and
application be interpreted in accordance with the relevant case law of the
Court of Justice of the European Union handed down before the end of the
transition period.
(5) In the interpretation and application of this Agreement,
the United Kingdom’s judicial and administrative authorities shall have due
regard to relevant case law of the Court of Justice of the European Union
handed down after the end of the transition period.
Article
4 WA thus embodies key principles of EU law: direct effect (enforceability of
rights by individuals before domestic courts); primacy/supremacy
(‘disapplication’ of inconsistent domestic law); and consistent interpretation
with both the methods of EU law, and its ‘general principles’ (which of course
include fundamental human rights, as (now) set out in the EU Charter and
interpreted by the CJEU).  The WA sees
itself as almost a species of EU law, and not as an ordinary EU international
agreement.  At least the direct effect
and supremacy aspects of that interpretation are reflected in the December 2017
Preliminary Joint Report (para 36), which states:
“Once this Bill has been adopted, the provisions of the
citizens’ rights Part will have effect in primary legislation and will prevail
over inconsistent or incompatible legislation, unless Parliament expressly
repeals this Act in future.”
It
almost goes without saying that all of these obligations would have been political
dynamite in the contemporary UK context.
How would
the WAB have gone about the tricky task of implementing the UK’s obligations
under the Withdrawal Agreement ‘in primary legislation’ (as required in Article
4 (2) of the Withdrawal Agreement)? The following is a summary of possible
approaches and some of their implications.
Repeat the wording of the European
Communities Act 1972
One
possible approach would have been to use the wording of the European
Communities Act
(ECA) 1972.  To do so
would have meant the continued supremacy and direct effect of law agreed
between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal
method, given that the ECA has in effect accommodated those concepts in the
UK’s domestic constitutional system for over forty years, even if
constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new
source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in
the same way that the European Communities Act 1972 is, in the words of the UK
Supreme Court in Miller,
para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and
overriding source’ of UK law.  This new
source of law would be in addition to the new source(s) of law (‘retained EU
law’ of various types) which will be created by the EU (Withdrawal) Act 2018,
when it comes fully into force.
The
benefits of this approach are that it secures compliance with the provisions of
Article 4 of the Withdrawal Agreement.  Further,
there is significant jurisprudence, including from the House of Lords and
Supreme Court, on the meaning and effect of the relevant parts of the European
Communities Act 1972. In particular, the Factortame
ruling confirms that domestic legislation, irrespective of its date, that
cannot be consistently interpreted with directly effective, validly adopted EU
law, must be ‘disapplied’. This approach thus entails significant legal
certainty and clarity.
The
detriments, however, include the complexities associated with yet another new
source of law, a point made by Mark
Elliott
in 2017.  Further, as Elliott
notes, this approach would appear inconsistent with the intention of the EU
(Withdrawal) Act to expunge directly effective EU law per se from the UK’s
legal systems.  Moreover, while the ECA
might be able to work ‘constitutional magic’ with EU law, whether it can do so
with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as
such) is far from certain.
EU/UK Withdrawal Agreement as ‘ordinary’
international law that gives human beings rights
An
alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’
international law, or, perhaps better, as international law that gives human
beings rights.  The key analogy here is
with the European Convention on Human Rights and the Human Rights Act
1998
.  Although in principle in the
UK’s legal systems, domestic legislation takes precedence over conflicting
international treaties, courts understand themselves to be under an obligation
to interpret domestic legislation consistently with international treaties if
possible, on the basis of a presumption that Parliament intends to comply with
the UK’s obligations in international law.  
The
obligation permits the UK’s courts – particularly its Supreme Court – to stray
from the explicit language of a statute, and even from Parliament’s apparent
intention when adopting that statute, as seen for instance in Ghaiden
v Goden-Mendoza
.  Of course, it
is going to be far from easy for domestic courts to discern the intentions of
Parliament when adopting the WAB, and so textual interpretation may well be
more important in practice here.  The Human
Rights Act 1998, sections 2 and 3, require that domestic courts must interpret
domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take
into account’ decisions of the ECHR’s institutions whenever the domestic court
considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include
decisions about the effects of the Withdrawal Agreement (for instance its
direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording
does not require ‘disapplication’ of domestic law if consistent interpretation turns
out to be impossible.
This
approach would also involve certainty and clarity.  However, it would potentially fail to fulfil
the UK’s obligations under the Withdrawal Agreement in full.
Use the wording of the Withdrawal Agreement
A
third approach would be to adopt a form of words that explicitly indicates
intention to comply with both the letter and spirit of the Withdrawal
Agreement, by using the words of its Article 4 (1):
‘shall
produce in respect of and in the United Kingdom the same legal effects which
they produce in the Union and its Member States. Accordingly, legal or natural
persons shall in particular be able to rely directly on the provisions
contained or referred to in this Agreement which meet the conditions for direct
effect under Union law’.
This
approach creates less certainty as there is, obviously, no jurisprudence on
which provisions of the Withdrawal Agreement meet the conditions for direct
effect.  There is no universal rule in EU
law as to direct effect of provisions of treaties to which the EU is a party:
it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold
test
for direct effect is higher for international agreements to which the
EU is a party than it is for other sources of EU law: the nature of
international law differs from other EU law in this respect.  However, in this instance, there is a strong
argument to the effect that at least the part of the Withdrawal Agreement on
citizens’ rights, which mirrors directly effective provisions of EU law, meets
the conditions for direct effect.  Whether this is the case for other provisions,
such as, for instance, those on data protection, is a different matter.
Alternatively,
or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the
wording of WA Article 4 (2), by requiring ‘judicial and administrative
authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with
the Withdrawal Agreement obligations.  Whether
the UK courts would interpret the obligation as identical to that under the
European Communities Act 1972, given that the UK would no longer be a Member
State of the EU, would potentially be a moot point, and some
have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty
than the wording of the European Communities Act would bring.
Problems with any approach
Mike
Gordon
is right to point out that any of these approaches is of course
vulnerable to the WAB itself being repealed. 
But equally, as he says, any of them, and especially the ECA or WA
wording approaches would constitute a significant example of Parliament seeking
to constrain its powers and in effect to bind its successors.
The
Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK
(and vice versa).  Its effects,
particularly as regards those citizens, will last long beyond the transition
period.  The WAB would somehow need to
secure these rights from interference not only from future UK governments, but
also from future legislation.  While the
UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the
underpinnings of EU membership: whatever approach it takes will be unlikely to
satisfy those
who are sceptical
about securing citizens’ rights in the post-Brexit
future.  As Paul
Daly
has pointed out, it is not difficult to imagine UK legislation
discriminating against EU citizens. 
Outside of EU law, the UK’s constitution does not have a tried and
tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.
These
concerns would equally be relevant if the Bill contained provisions on the
future UK/EU relationship, or as regards any parallel legislation dealing with
that relationship. The Prime Minister had planned to table both: rules on a
parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either
way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or
whoever is the next Prime Minister) could just “rip up” such guarantees: it
would require a parliamentary majority to do so. A watered-down version of the
employment and environmental law guarantees that the opposition was seeking would
nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the
prospect nevertheless was surely a factor in dissuading the opposition parties from
agreeing to Mrs May’s proposals.
Final thoughts: WAB applied in first
instance courts and tribunals
Ultimately,
it does not matter so much exactly what the WAB says, but more how
it is interpreted
.  Here, of course,
the decisions of the UK’s appellate courts will be crucial, as has been the
case with the ECA and Human Rights Act.
However,
we should not lose sight of the first-instance decision-making that will
precede any such rulings.  It is this
first instance decision-making – in immigration contexts, primarily, but also
in employment contexts and perhaps many others – which will determine the
real-life position of the human beings affected by Brexit, whose position the
EU/UK Withdrawal Agreement seeks to protect as much as possible. 
One
final sobering thought.  First instance
judges in the UK respect the doctrine of Parliamentary sovereignty, and regard
themselves at the service of the will of Parliament, as expressed in
legislative text.  Judicial training
includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be
enacted in
record time
.  But the WAB text has
not even been released.  No one –
including those who train the UK judiciary – has had any time to consider its
meaning or effects.
Barnard
& Peers: chapter 27



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