Empty Threats: The Explanatory Notes to the European Union (Withdrawal) Bill

Today, the British government published its European Union (Withdrawal) Bill, the legislation designed to give statutory effect to Brexit. There is much of interest in the Bill, which will be debated in the autumn. Clauses 1-6 form a swamp of definitions, rules and standards designed to avoid chaos by ensuring that EU law remains enforceable in the immediate aftermath of Brexit.  Even seasoned lawyers are not going to enjoy navigating these provisions.

But my main interest is in the ministerial regulation-making powers (here and here), a topic I suspect I will post about more than once between now and the autumn. For now, however, I want to return to a theme I have covered before, namely the post-Brexit status of EU nationals in the United Kingdom.

The following passage in the Explanatory Notes to the Bill caught my eye. It appears in a section containing examples of potential uses of “a power to enable ministers to correct problems arising from withdrawal”. This power is contained in clause 7 of the Bill:

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.
Clause 7(4) underscores how wide-ranging this power is to be: “Regulations under this section may make any provision that could be made by an Act of Parliament”.

In the Explanatory Notes, we are told:

Once the UK leaves the EU, there will be areas of law where policy no longer operates as intended. One element of EU law is reciprocal arrangements between states including reciprocal rights of citizens. As a matter of international law, those obligations will fall away for the UK at the point where the UK leaves the EU. At the same point, EU states’ obligations to the UK and its citizens will also fall away. Any such obligations beyond that time would only exist if they were agreed between the EU and the UK as part of the negotiations that have recently commenced. However, without a correction, the UK’s law would still include recognition of the EU citizens’ rights. The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals (my emphasis).

Frankly, this is bizarre, for a number of reasons. First, this threat is likely to underscore the widespread perception that the United Kingdom government is intent on reducing rights currently enjoyed by EU nationals based in Britain. In particular, it is difficult to imagine this passage being well received in the offices of the EU officials charged with negotiating the Article 50 withdrawal agreement, of which citizens’ rights is an important preliminary aspect.

Second, the other examples given in the section of potential uses of the power to “correct problems” are wholly uncontroversial. The section begins by referencing terms “which will no longer be accurate once the UK leaves the EU, such as references to “member states other than the United Kingdom”, to “EU law”, or to providing for the UK’s “EU obligations””. These will obviously need to be altered and doing so by regulation is a sensible (though not the only) way to do so. The reader also learns that “many functions currently performed by EU bodies] may need to be transferred to appropriate bodies in the UK for them to continue”. Again, it is surely uncontroversial that “the power to deal with deficiencies would enable this”. But these are, (a) purely technical matters, on any definition, and (b) must be resolved, one way or another, in order for the statute book to operate coherently after Brexit. Coming after these important, technical matters, the threat about citizens’ rights is incongruous, to say the least.

Third, and worst of all, it is not at all clear that the “power to deal with deficiencies” could actually be used to carry out the threat in the Explanatory Notes. Although clause 7(4) can give the force of primary law to regulations introduced to “deal with deficiencies”, the ends to which clause 7(4) can be put depend on the overall objectives of clause 7.

To begin with, it is difficult to see how EU nationals enjoying continued rights would, as clause 7(1) puts it, cause retained EU law to fail to operate effectively or cause any other deficiencies. It seems to me (although I am not confident of my ability to navigate the swamp unguided), the relevant immigration regulations would simply continue in force under clause 2. The potential embarrassment for the UK goverment of EU nationals enjoying more rights than UK citizens at home or abroad is hardly an operational problem or a deficiency.

Moreover, clause 7(2) contains a non-exhaustive list of ends to which clause 7 might be put; all of these are banal. That none of them comes close to eliminating EU-law rights strongly suggests that this is not the sort of action that is authorised by clause 7.

Finally, clause 7(6) contains a number of limitations: clause 7 cannot be used to tinker with the Human Rights Act, for instance; and, in particular, cannot be used to “make retrospective provision”. It is at least arguable that the elimination of an existing EU-law right would amount to a prohibited “retrospective provision”.

The reader is led inexorably to the conclusion that for any one of these reasons, alone or in combination (and I have not even mentioned the ‘principle of legality’, which might also be engaged), that any regulation purporting to carry out the threat in the Explanatory Notes would be ultra vires, that is, simply outside the scope of clause 7. It is the emptiest of threats.

This content has been updated on July 13, 2017 at 20:51.


6 commentaires pour “Empty Threats: The Explanatory Notes to the European Union (Withdrawal) Bill”

Jan Jakob Bornheim

July 13, 2017 at 21:10

Here is something I have been wondering after reading section 7. It might be an extremely specific example, and you might want to keep the discussion more focused on citizen’s right, in which case I apologise for the somewhat unrelated nature. Anyways, here it goes: European private international law is not fully neutral. It tends to discriminate towards the application of European private law. For example, art 3(4) Rome I Regulation says “Where all other elements relevant to the situation at the time of the choice are located in one or more Member States, the parties’ choice of applicable law other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement.” In certain cases, EU private law is mandatorily applicable without granting the same favour to the private law systems of other jurisdictions. Now when the Rome I Regulation is implemented into domestic law, the reference to “Member States” is not even necessarily a deficiency. After all, the reason for the mandatory application of European private law is that it guarantees a consumer protection standard that is not guaranteed in other legal systems, including, then, the UK no longer bound by EU consumer protection regulation. So I already find it hard to say that the replacement of “Member State” in that section is necessary to remedy a deficiency. The – domesticated – regulation would still do exactly what it is supposed to do. But further to that, it is not at all clear how it should be remedied. Should it read “Member State(s) or the UK” or should “Member State” consistently be replaced by “UK” (and nothing else)? The choice between leaving it as it is, replacing “discrimination in favour of EU private law ” with “discrimination in favour of UK private law(s)” or “discrimination in favour of either EU or UK law” appears to me a genuine political question and does not easily fit the list of “banal examples” either. So I wonder whether any kind of amendment of these types of EU regulations would also not be sanctioned by the statute.

    Paul Daly

    July 14, 2017 at 19:15

    I am especially reluctant to venture into the domain of private international law. I would think that your point is certainly arguable, though, and it would probably pay someone to argue it at some point. I expect that will be true of many provisions in many domains of law. Great uncertainty (and legal bills) lies ahead.

      Jan Jakob Bornheim

      July 15, 2017 at 15:27

      Thanks for humouring me. I guess my main point, although I expressed by way of the specific example from my area of interest, was my suspicion that there are a great many possible examples of adjustments that are both likely to happen and arguably not trivial in any way and thus not covered by the power in s7.

David Ellis

July 14, 2017 at 18:54

You state that ‘this threat is likely to underscore the widespread perception that the United Kingdom government is intent on reducing rights currently enjoyed by EU nationals based in Britain. In particular, it is difficult to imagine this passage being well received in the offices of the EU officials charged with negotiating the Article 50 withdrawal agreement, of which citizens’ rights is an important preliminary aspect.’ However, the last sentence of the 2nd passage you quote suggests that the power to remove EU citizens’ rights would only be exercised if (i) there was a ‘no-deal’ outcome to the Article 50 negotiations, and also (ii) the corresponding rights of UK citizens in the EU27 were removed. Like most people, I very much wish a no-deal outcome to be averted. But couldn’t the above passage be read as part of the UK government’s ‘contingency plan’ for a ‘no-deal’ scenario, rather than intending at the outset to reduce EU citizens’ rights? (I am sure the UK government very much wishes to avert a no-deal scenario; several Ministers have recently confirmed this, notably Philip Hammond. They surely cannot be blind to the grave effect a no-deal would have on the economy and Northern Ireland, as well as on the lives of 4.5 million citizens and our foreign-policy relations for the foreseeable future.) I am not sure what the UK government ‘should’ do in the most unfortunate event of (i) and (ii) occurring, but surely one can see why the government might wish to at least appear to leave open the option to respond in kind. No-doubt many on the left would prefer it if the UK government were to ‘turn the other cheek’, but many would not, and a more robust response is perhaps defensible according to several widely-held moral codes. Even if the UK government does not in fact intend to respond in kind in the event of (i) and (ii) occurring (e.g. because it wishes to keep highly-valued EU27 workers in the UK), it might have good reason to appear to leave the option open, in order to help deter an excessively hard-line approach to final stages of the negotiations, by the EU27 negotiators. On the last point, I must confess I personally regard some elements of the EU27 proposals as somewhat unreasonable. For example, the demand that the CJEU have direct jurisdiction over the rights of EU27 citizens in the UK (jurisdiction which would last at least 80 years after Brexit Day). No such demand was made of the EFTA States Norway, Iceland and Liechenstein, where the rights of EU citizens are enforced by the EFTA Court, rather than by the CJEU. Why not a similar arrangement for the UK?

    Paul Daly

    July 14, 2017 at 19:23

    I have to say I naively thought the “default” scenario was that the “settled status” proposed by the British government would be given a legislative basis. “Settled status” in legislation seemed to me to be the bare minimum, but as you highlight, the Explanatory Notes reveal an even barer minimum. I think your suggested rationale for including the threat in the Explanatory Notes is eminently plausible and may accurately describe the UK government’s thinking. With respect, however, I think that potential breaches of the “moral codes” you mention are not, legally speaking, deficiencies that fall within the scope of clause 7.

      David Ellis

      July 14, 2017 at 20:40

      I can well believe you are right about the last point (re Clause 7). It could be that the UK government has no intention of carrying out the ‘threat’ (even in the event of a ‘no-deal’), but merely to create the impression that it is prepared for a ‘no-deal’ outcome ‘in extremis’, and might respond in kind to (ii). Indeed, I hope this is the correct explanation. But it might just be that this part of the Bill (and Explanatory Notes) was not crafted with sufficient care.

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