Jonathan Djanogly questions legal experts in a sitting of the Select Committee on Exiting the European Union.
Select Committee on Exiting the European Union Oral evidence: The European Union (Withdrawal) Bill, HC 373
Wednesday 11 October 2017
Legal Experts evidence
Q34 Mr Djanogly: The Bill creates a new category of legislation, retained EU law, at Clauses 2, 3 and 4, and we have had a conversation with Dr O’Brien and Sir Stephen as to the interaction with Sections 7 and 9. Just going back a stage, if I may, would it be possible to identify every piece of retained EU law that the Bill aims to capture? To what extent do you agree with the Lords Constitution Committee, who thought that the Government could be casting their net too widely in including legislation that would have remained in force even without Clause 2?
Dr O’Brien: Clause 2 does appear to be cast quite widely. The facilitating provision is Clause 14(3): “In this Act references to anything which continues to be domestic law by virtue of Section 2 include references to anything to which subsection (1) of that section applies which continues to be domestic law on or after exit day (whether or not it would have done so irrespective of that section)”. Clause 2 is fairly widely drawn in the first place. That makes clear that anything that falls within the clause, whether or not it would exist anyway, whether or not it is standalone legislation that does not need to be saved, is to be considered in existence by virtue of Section 2, and that means the ambit of Clause 7 is triggered. I cannot remember the first part of your question.
Q35 Mr Djanogly: Would it be possible to identify every piece of retained EU law?
Dr O’Brien: It would be a rather mammoth task. It is drawn as broadly and widely as possible, I think.
Sir Stephen Laws: It is a mammoth task so far as EU-derived domestic law is concerned. It is an almost impossible task so far as directly applicable law for things that are covered by Clause 3 and Clause 4 are concerned.
Q36 Mr Djanogly: Do you think that those three clauses adequately address the challenges of converting the acquis into UK law? For example, Clause 3(1) explains that only direct EU legislation, as defined in Clause 3(2), that is operative immediately before the exit day will be converted. Is the use of the word “operative” clear for direct EU legislation which features complex transitional arrangements, for instance?
Sir Stephen Laws: My problem is that I, as I have suggested in the note I put to you, have a different suggestion as to how you might retain directly applicable law, because I am not convinced that it is useful to preserve it as law. I think there is an alternative model you could have thought of. I have been a drafter on the inside and I know that you come to decisions about how you are going to do things, everybody says, “You did not understand what you were doing” and you did have reasons for doing it. I am quite prepared to believe and understand why this may have been done the way it was, but things might be simpler if you treated directly applicable law as if, post exit, it were foreign law and was treated as a question of fact and not, as paragraph 3 of schedule 5 requires, as a question of law. You would then have a rule of UK law that described in what situation you would take account of or give effect to the foreign law that is EU directlyapplicable law in the United Kingdom. I said more about that in the note and it is all pretty intricate and difficult, so I would like to refer you to the note, but I think that would remove a lot of the conceptual problems that arise from this approach. It may give rise to other problems—I am quite prepared to believe that it will—but my comment is: is this an adequate way of doing it? There is another way that is worth exploring that would give rise to less uncertainty.
Dr O’Brien: If I might add to the question of the conversion of the acquis into UK law, as Sir Stephen says, we can see what the intention is behind it—the preservation of continuity and as smooth a transition as possible—but with the exception of Clause 2, which deals with law which is effectively UK law already, 3 and 4 do not effect a transmogrification. What they do is they say, “These laws will apply. They will be UK law” but without telling us how they ought to be read to make them UK law. For example, Clause 3 will deal with directly applicable EU legislation, which could include Regulation 883/2004 on social security co-ordination. What does that mean if it is also deemed to be something that requires reciprocity? Also, it is specifically addressed to member states. A lot of regulations are specifically addressed to member states. If you read it literally, and the UK is not a member state, then you can say, “That applies but it is not applicable. It has nothing to do with us”. Are they supposed to have a literal reading or are they supposed to read it “as if”, and what is the “as if”? What is the connecting point? What is the tool of interpretation? Is it as if the UK is still a member or is it as if “member states” refers to UK? In that case, you then have all sorts of other questions about: what about those provisions that the UK has no control over because they are in the gift of other member states, whether it is in Clause 3 or Clause 4 in particular, dealing with treaty rights, like non-discrimination in other member states. That is not the gift of the UK to award, so how is that supposed to be read? Are we supposed to read it as if “member states” means the UK, only in pieces of legislation in which the UK has jurisdiction and only to the extent that the UK has jurisdiction? Then you have the extra complexity, to add on top of it, that you might be dealing with an issue where the UK does have jurisdiction and you can read it as though it applies to the UK, but it is dealing with EU nationals’ rights to export child benefit or whatever. Are you then going to say, “It should be read as if it applies to the UK only in matters where the UK has jurisdiction and only in matters where there is no expectation of reciprocity”. There is a whole raft of extra interpretation required and there is no guidance given on how that is supposed to work.
Q37 Mr Djanogly: Sir Konrad, would Sir Stephen’s option be easier for judges to follow?
Sir Konrad Schiemann: I have not had a chance to look at Sir Stephen’s note. English law is accustomed to the idea of treating foreign law as a question of fact. Continental jurists find this totally bizarre, and we may find that bizarre but there is a very widespread view, usually expressed in Latin, that the court knows the law. The idea that an English court applying—for the sake of argument and to get away from EU law—French law is applying facts, which seems natural to us, seems rather odd to a French jurist, who is looking at it in a different way. It is one of the oddities about the Union that we all start off from rather different points and have to reach some sort of accommodation. I am sorry, I have not read it, but I must say, speaking as a former English judge and leaving aside EU connections, when I heard it, I thought, “Yes, I am used to doing that sort of thing”. I do it all the time.