EU (Withdrawal) Bill: the Charter, general principles of EU law, and 'Francovich' damages

This paper addresses clause 5(4) and 5(5) of the Bill and Schedules 1 and 6, which together specify some particular exceptions to the Bill’s general retention and conversion of EU law. Schedule 1 also makes provision for how retained EU law will be scrutinised in domestic courts after exit day.

Other related briefings

Clause 5(1), 5(2) and 5(3), which relate to the principle of supremacy of EU law, are covered by the Commons Library briefing paper, European Union (Withdrawal) Bill: Supremacy and the Court of Justice.

The Commons Library Briefing, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill, and was published on 1 September 2017.

Exceptions to the retention and conversion of EU law

One of the main aims of the EUW Bill, which is currently in Committee stage in the House of Commons, is to preserve and convert EU law for the post-exit statute book (clauses 2, 3 and 4). However, as this paper explains, some elements of EU law are specifically excluded by the Bill:

• Charter of Fundamental Rights (chapter 2 of this paper)

Clause 5(4) exempts the EU Charter of Fundamental Rights and Freedoms from being converted into domestic law, and clause 5(5) explains that pre-Brexit case law on the Charter would be read as referring instead to ‘corresponding retained fundamental rights and principles’ (undefined).

The Government contends that no rights would be lost because the Charter did not introduce any new rights, but this is contested. And although the Charter is criticised for adding a layer of complexity, this Bill arguably adds complexity and uncertainty in the way it handles the Charter. It could also affect the negotiations relating to Ireland/Northern Ireland issues. Several amendments relating to the Charter have been tabled.

The Charter might continue to have ‘residual’ effects in the UK even after its removal under these provisions, for instance in relation to the withdrawal agreement, any transition arrangements, and future cooperation.

• Challenges to the validity of retained EU law (chapter 3.1 of this paper)

Schedule 1 para 1 provides that after exit day retained EU law cannot be challenged in domestic courts on the basis that immediately before exit day, an EU instrument was invalid. Schedule 1 para 1(2)(b) and (3) is a power to enable the Government to provide the grounds upon which the validity of a retained EU law can be challenged. As some retained law, namely ‘retained direct EU legislation’ converted by clause 3, is neither primary nor secondary legislation, there is some uncertainty as to how the courts will approach challenges to validity of retained EU law after exit day.

• General principles of EU law (chapter 3.2 of this paper)

Schedule 1 para 2 limits the ‘general principles of EU law’ that would be retained to those that have been recognised by the Court of Justice of the EU (CJEU) before exit day. So principles such as legal certainty and proportionality would be retained; but not all the principles of the Charter have been recognised as general principles by the CJEU.

Para 3 reduces the function even of those general principles that are retained, so that they can only be used to help interpret other retained EU law. UK courts would no longer have the power to disapply domestic legislation on the grounds that it conflicts with these general principles.

Together these provisions amplify the effects of not retaining the Charter.

• Francovich damages (chapter 3.3 of this paper)

Other exceptions in Schedule 1 include the EU remedy of state liability as set out by the CJEU (‘the rule in Francovich’)[1]. In some circumstances states have to compensate individuals or businesses for damage they suffer because the state has failed to transpose a directive, or done so late or poorly.

Excluding principles like ‘Francovich’ damages for state liability appears to create a presumption that all other comparable principles are preserved. For example, the principle set down in Marleasing,[2] which provides that courts should interpret all domestic legislation if at all possible so as to comply with EU law, is not expressly excluded.

• Other exceptions (chapter 4 of this paper)

Schedule 6 clarifies the Clause 3 exemptions, which exclude some of the acquis communautaire (the accumulated body of EU law) from the preserving and converting provisions, where it does not apply to the UK.

This paper also explains that ‘soft law’ originating from the EU, in the form of guidance and other non-legislative measures, will not be converted into domestic law by the EUW Bill.

Of course legislative measures passed after the EUW Bill receives Royal Assent could also restrict the amount of retained EU law that applies after exit day. Other Brexit bills, and secondary legislation under the EUW Bill and other Brexit bills, will change various elements of retained EU law.

Transition period

It is not clear yet whether the Charter, general principles and Francovich damages would have to be fully retained for any transition or implementation period.

The exclusion of particular aspects of the acquis imply that this Bill is not intended to provide for a standstill transition which preserves the existing structure of EU rules and regulations. On 13 November 2017, the Government announced that further primary legislation, the Withdrawal Agreement and Implementation Bill, would be used to implement the withdrawal agreement and any transition / implementation period.

Impact on the operation of ‘retained EU law’

Clause 6(7) of the EUW Bill provides that the exceptions in clause 5 and Schedule 1 enable the exclusion of certain cases from the definition of ‘retained case law’. Clause 6(7) also states that clause 5 and Schedule 1 exclude particular principles from the ‘retained general principles of EU law’. Clause 6(7) further confirms that each of these categories can be modified by further subsequent legislation.