Archive for the ‘UK and European law’ Category

Troubling and unnecessary: the problems of precedent in clause 26(1) in the Withdrawal Agreement Bill

The Withdrawal Agreement Bill includes a clause that gives ministers the power to make regulations with respect to the judicial treatment of retained EU case law after Brexit. James Lee (King’s College London) identifies four problems with this approach. The clause could easily be removed from the WAB with no impact on the government’s ability to ‘get Brexit done’.

The European Union (Withdrawal Agreement) Bill is the subject of scrutiny in the House of Lords this week, before returning to the Commons next week. The focus of this post is a new Clause, 26(1) of the Bill, which would have significant implications for the relationship between the government, Parliament and the courts. The government seeks ‘certainty and consistency in how law is applied’, and to provide for ‘courts [to] have comprehensive and clear … guidance on how to interpret this body of law’ (Delegated Powers Memorandum, para 366). I argue that the new clause is unusual and undesirable given the doctrine of precedent, the hierarchy of our courts and the separation of powers.

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Guests, including judges, ambassadors and members of the Lords gather ahead of the Queen’s Speech in December 2019. Photo: UK Parliament. Copyright House of Lords 2019 / Photography by Roger Harris

What does the relevant clause say?

The clause would amend section 6 of the European Union Withdrawal Act 2018 (’section 6’ hereafter). The existing section as enacted provides that courts are not to be bound by Court of Justice of the European Union (CJEU) decisions made on or after exit day, but may have regard to such decisions, so far as it was relevant to any matter before the court. However, existing EU law (‘retained EU law’) that is not otherwise changed by legislation would continue to be interpreted in accordance with retained case law. Thus, Parliament was to have the opportunity to legislate in respect of any specific decisions that were considered to be inconsistent with the post-Brexit vision of law, but there would otherwise be continuity. Only final courts of appeal – the UK Supreme Court for all matters within its jurisdiction and the High Court of Justiciary for criminal appeals from Scotland – can depart from retained case law, applying the same test to such decisions as they would to the question whether to depart from their own case law. The aim of these provisions was to provide continuity and certainty, given the major change involved in the UK’s departure from the EU.

The new clause instead proposes to confer upon a minister of the Crown a broad power to make regulations to provide for how the courts will approach retained EU case law (there is a non-exhaustive list of what the regulations may provide for). Significantly, those powers would enable a minister to make regulations for any court to be designated as a ‘relevant court’ for the purpose of not being bound by retained EU case law, to the extent provided by the regulations. The Memorandum lays out the apparent explanation for these powers (at para 365):

‘given that we are leaving the jurisdiction of the CJEU, it is right that UK courts should be able to decide to depart from the rulings of a Court whose jurisdiction, in most cases, is no longer relevant.’

But there is no explanation of why this power should be extended to courts that do not usually exercise a power to depart from previous authority.

Four problems

Final courts of appeal

The Supreme Court takes the approach that ‘while treating [its] former decisions … as normally binding, [it will] depart from a previous decision when it appears right to do so’. The Justices have been very reticent in exercise this power: ‘this Court should be very circumspect before accepting an invitation to [do so]’ (Knauer v Ministry of Justice [2016] UKSC 9, [23]). The High Court of Justiciary has a distinct approach to precedent, but still recognises the value of consistency. Thus, these courts exercise caution when entertaining challenges to existing decisions, and the same approach would be taken under the existing 2018 Act to CJEU decisions. The new clause would instead enable ministers to make regulations which would vary the test applied by these courts. Given the developed body of law governing precedent in these courts, the addition of other considerations would seem to point to the executive direction of a different test.

‘Relevant courts’

The new clause would allow for a radical change, capable of generating considerable uncertainty in daily litigation in the courts and tribunals up and down the country.

It is important to appreciate the pervasiveness of EU law as adopted into our law. A good example is the law on product liability: under the Consumer Protection Act 1987, which implements the Product Liability Directive 85/374/EEC, consumers injured by a defective product do not need to show ‘fault’. It does not appear that there has been any suggestion that this legislation will be repealed by the withdrawal agreement. So, as the law stands, if I go to Exeter County Court to sue the manufacturer of a defective toaster, I would rely on the interpretation of that legislation in existing English and CJEU decisions as relevant binding authorities.

There are therefore numerous problems with extending the power to depart from retained case law to lower courts. First, it engenders uncertainty. The lower courts operate within the system of precedent, and the doctrine not only means that courts take their own previous decisions seriously; it also relies upon the hierarchy of the courts, with lower courts following the decisions of superior courts (see eg Willers v Joyce (No 2) [2016] UKSC 44). First instance judges are not used to departing from authorities: if even courts of first instance are able to depart from retained case law, then every such existing authority may be up for debate and challenge. The prospect would add to the complexity and length of trials, and also cause uncertainty for litigants, consumers, business, employees, employers and the government, as outcomes would be unpredictable.

In the Committee debate in the Commons last week, the relevant minister, Robin Walker, committed the government to preserving ‘long-standing constitutional principles such as the structure and hierarchy of the court system’, (8 January 2020, vol 669 col 433). But the limited reasoning behind the clause does not seem to appreciate the challenges. How would it work? If a county court judge, or a panel sitting in the Upper Tribunal, decided to depart from a previous decision of the CJEU, would other courts (of differing levels of seniority) then be expected to treat that decision as no longer binding? Or would it still be for the relevant final court of appeal to confirm that the decision was no longer binding? This would be particularly complicated where higher courts have themselves previously applied the relevant CJEU case law. The existing Section 6 at least has the advantage of fitting with and respecting the hierarchy of courts within the United Kingdom.

This scheme would also place judges at the forefront of dealing with what will be politically controversial questions in otherwise routine cases. Unlike some critics (such as Richard Ekins), I do not say this out of a concern about judicial agendas or the need to minimise judicial power (and there is no indication that the courts have sought such a power). But rather, it is about the appropriate responsibility for identifying supposed problems and the scrutiny of decisions: the approach envisaged by cl 26(1) would involve an abdication of responsibility by the government and Parliament in tackling difficult and controversial questions, passing the buck instead to the courts.

Consultation obligations

The Memorandum states that the government recognises that this ‘is clearly a sensitive matter, and important for certainty and consistency in how law is applied. Therefore, the Government wishes to consult with the judiciary…’ (Memorandum, para 366). This wish would manifest as a duty, as before making any such regulations, the minister would be under a duty to consult numerous members of the senior judiciary. There would, though, be no requirement to give effect to the views of those consulted All ministers of the Crown have an obligation to uphold the continued independence of the judiciary under s 3(1) of the Constitutional Reform Act 2005. This duty would have to be complied with in the conduct of any consultation and process of making regulations. It is even questionable whether it would be appropriate for the judiciary to discuss the approach to precedent to be prescribed by regulations.

Any regulations may instead enable named members of the judiciary to determine the relevant considerations for deciding whether to depart from any retained case law, rather than a minister (Memorandum, para 360). This is said by the Memorandum to respect the ‘importance’ of the role for the judiciary but it is only one option open to the minister, so perhaps not all that important.

Timing

It is worth noting that there would be a narrow timeframe for any regulations under clause 26(1) to be made:

‘the intention is that any regulations made will be made during the implementation period, so that this guidance can be available to the courts when such questions of interpretation start to arise at the end of that period.’ (Memorandum, para 367).

(This contrasts with other provisions of the Bill allowing for regulations on other matters to be made up to two years after the end of the implementation period (eg clauses 3 and 4)). Yet insofar as there are existing CJEU decisions that are thought to be problematic, they could be addressed in the current Bill. If there are no such decisions that can be identified at this stage, then we may doubt the need for the power at all.

Conclusion

In conclusion, Clause 26(1) is a troubling and unnecessary inclusion in the Withdrawal Agreement Bill. It is unclear what specific problem it is designed to solve (no specific decisions are identified, for example), so ‘certainty and consistency’ are unlikely to be achieved. Instead, introducing this power, and any subsequent regulations, would encourage uncertainty and increase the risk of inconsistency, such that control would be lost rather than taken back (as the rhetoric has it). On the positive side, this need not be a partisan issue: this sub-clause could be omitted from the Bill without having any bearing on ‘getting Brexit done’. Even if the Bill is passed with the clause in its present form, the regulations should not be made.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

‘Get Brexit done’: Johnson’s election win won’t allow the EU to move on from Brexit

Boris Johnson’s victory in the United Kingdom General Election has been welcomed in the European Union for the ‘clarity’ it is said to bring to the question of Brexit. However, the only certainty at this point is that, from early this year, the UK will no longer be represented in EU institutions. As Ferdi De Ville and Gabriel Siles-Brügge argue, the wider impact of Brexit for the EU is contingent on the future partnership, the dynamic response of societal and political actors and the discursive struggle over the lessons that the EU should learn from Brexit.  

‘Get Brexit done’. The promise credited by many to have swung the 2019 UK elections for the Conservatives points to the Brexit fatigue experienced in parts of the UK electorate. EU officials were also said to be relieved at the ‘clarity’ of the election result. The changes agreed with the pre-election Boris Johnson administration to the Withdrawal Agreement and Political Declaration similarly betrayed a desire to move the EU policy agenda onto other matters. Not without a certain symbolism, the EU’s flagship Green New Deal was presented the day before the UK General Election.

 

But Brexit, as numerous academics and commentators have highlighted, is here to stay, not least because Britain’s exit this year marks the starting gun for the second phase of talks on the future relationship. And while there may be a hope amongst EU policymakers that negotiating the future economic partnership will now be easier and that the period of ‘gridlock’ is over, the parallels to phase 1 of the Brexit talks are so far racking up.

© Copyright Stephen Craven and licensed for reuse under this Creative Commons Licence.

The Johnson administration promises a new cliff edge at the end of December 2020 by refusing to countenance an extension to the transition period – going as far as to enshrine a provision in the Withdrawal Agreement Bill to prevent an extension. The European Commission is already contemplating a new ‘sequencing’ of negotiations – focusing talks this year on issues for which the EU cannot take unilateral mitigating action. And – as summarised in Commission President Ursula von der Leyen’s remark that the EU would be pushing for ‘zero tariffs, zero quotas, zero dumping’ – the EU’s insistence on ‘level playing field’ provisions as the price for market access remains. These provisions were first found in the now-abandoned all-UK customs union backstop.

The direction of travel, notably the changes ‘won’ by Johnson to the Withdrawal Agreement and Political Declaration and the stated intention to negotiate a ‘comprehensive’ Free Trade Agreement without regulatory alignment, suggests a looser economic relationship. But nothing is yet set in stone. Johnson’s majority might still allow him to ignore Eurosceptic backbenchers and push for a closer economic relationshipAn extension by any other name is another possibility. The UK might be exiting the EU and its governance structures in early 2020, but Brexit is still to play for.

All of this suggests that Brexit – the broader process, rather than the narrower question of the UK’s exit from the bloc – will likely continue to be part of the EU policy landscape for some time. The European Union might be eager to turn the page on Brexit to focus on other pressing issues like its multiannual budget, implementing the Green New Deal or completing the reform of the monetary union. But the on-going Brexit process will keep on leaving its imprint on these other policies.

This blog post is intended as the first in a series reflecting on the contributions to a Special Issue on ‘The Impact of Brexit on EU policies’ as we move into phase 2 of the negotiations. As we argue in the Introduction to this Special Issue, compared to the wealth of studies of Brexit’s impact on the UK, relatively little scholarly work has been produced regarding its impact on the EU. Where academics have considered such impacts, the tendency has been to focus either on (grand) integration theory or on the ‘static’ effects of removing the UK from the EU policy machinery.

The first group has conceived of Brexit either in terms of a broad ‘disintegrative dynamic’ undermining the Union or – less dramatically – as an instance of ‘differentiated (dis)integration’. Meanwhile, a second group homing in on more specific policy impacts has tended to take ‘the behaviour and impact of the UK’s more than forty years of membership of the EU as proxy for what will happen when taking it out of the EU “equation”’. This echoes the common-sense view in much of the commentariat that removing the liberal UK will push the EU in a more social or protectionist direction.

The contributors to the Special Issue offer a more nuanced and/or detailed reflection on Brexit’s potential impacts on specific policy areas – including articles focused on EU trade policythe Single Market, the European Social Dimension, the Common Agricultural PolicyEU Climate Change Governancegender in EU Foreign and Security PolicyEU Development Policy, and the EU’s Post-Brexit Global Role. How exactly Brexit will affect EU policies depends on the contours of the future partnership, the responses of societal and political actors, and the way that a post-UK future for the EU is imagined.

Several authors suggest that on-going uncertainty will lead EU actors to dynamically adjust their preferences and strategies in ways that cannot simply be extrapolated from their past behaviour. For example, other liberal Member States have already formed a grouping intended to counterbalance the absence of the UK, the so-called ‘New Hanseatic League’. When and if (previously) UK-based businesses decide to relocate to the EU27, this is likely to affect the balance of societal interests. Another factor is how Brexit is framed in the EU. Some like French President Macron have depicted Brexit as a call for a more integrated EU that is able to ‘respond to its people’s need for protection’. Others, like the previous EU Trade Commissioner Cecilia Malmström, have argued that in response to Brexit (and Trumpian trade wars), the EU needs to, more than ever, become the world’s champion of free trade.

Not unlike the outcome of the future EU-UK relationship itself, how these debates will develop is still open. Our Special Issue examines under which conditions certain outcomes are more plausible. In the upcoming blog entries of this series, contributors will build on their articles to explore how the Johnson victory and the first weeks of the new European Commission might shape how these different scenarios play out.

This post represents the views of the authors and not those of the Brexit blog, nor the LSE. 

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