The EU Withdrawal Bill and Judicial Review: Are we ready?

15 January 2018 by Angus McCullough KC

A flash-back to 1980:  the first series of the TV sitcom, ‘Yes Minister’ and a discussion between a Permanent Secretary (Sir Humphrey Appleby) and his Minister (the Rt Hon Jim Hacker MP):

Sir Humphrey: Minister, Britain has had the same foreign policy objective for at least the last five hundred years: to create a disunited Europe. In that cause we have fought with the Dutch against the Spanish, with the Germans against the French, with the French and Italians against the Germans, and with the French against the Germans and Italians. Divide and rule, you see. Why should we change now, when it’s worked so well?

Hacker: That’s all ancient history, surely?

Sir Humphrey: Yes, and current policy. We had to break the whole thing up, so we had to get inside. We tried to break it up from the outside, but that wouldn’t work. Now that we’re inside we can make a complete pig’s breakfast of the whole thing — set the Germans against the French, the French against the Italians, the Italians against the Dutch… The Foreign Office is terribly pleased; it’s just like old times.

Hacker: But surely we’re all committed to the European ideal?

Sir Humphrey: [chuckles] Really, Minister.

Nearly 40 years later, as the Westminster Government seeks to extract the UK from the European project, chuckles are in short supply (in contrast to articles about Brexit).  This piece considers the role of judicial review as the EU Withdrawal Bill is enacted, and after Brexit day has dawned – and the capacity of the Administrative Court to meet the increased demands that will predictably be made of it.

Restoring the supremacy of Parliament?

A battle cry of the Brexiteers during the referendum campaign was a rousing appeal to restore the supremacy of Parliament: to free our great nation from its subservience to EU law.  There is therefore a dispiriting irony that the process of withdrawal that is proposed in the EU Withdrawal Bill will lead to a hollowing out of the authority of Parliament[1].  On an unprecedented scale, it is proposed that Parliament will divest itself of powers in its traditional sphere of authority – that of legislating pursuant to the mandate granted by the electorate – and transfer such powers to the Executive.   At the same time, there will be a sapping of Parliamentary power to the Judiciary, who will be required to adjudicate on issues of policy that would be expected to have been determined by the sovereign Parliament, unless some clear interpretative guidance is provided in the approach to be adopted to policy issues that will inevitably arise.

Delegated legislation

Concerns about the volume and scope of delegated legislation (that is legislation made by ministers pursuant to powers granted by Parliament in primary legislation) are not new.  Such concerns have been being voiced for some years in reports of the Delegated Powers Committee[2], the Constitution Committee[3] and in a personal capacity the latter’s member Lord Judge, the former Lord Chief Justice.  Whilst it is generally recognised that delegated legislation is essential to keep the complex wheels of Government turning, the extent of reliance upon such legislation had become startling, even before the Brexit Referendum was a twinkle in David Cameron’s eye.

Lord Judge, giving a public lecture in April 2016, two months before the referendum, stated that “what was once a small stream of delegated legislation in 1929 has become an inundation”.  Speaking in November 2017 Lord Lisvane (who as Robert Rogers was Clerk of the House of Commons before his retirement and ennoblement) anticipated a “tsunami” of secondary legislation that would be unleashed by the EU Withdrawal Bill when enacted.

The concerns are not just as to the volume of the delegated legislation, but the breadth of its scope, and the lack of – or at least severe limitations upon – any effective scrutiny of what is drawn up by ministers pursuant to the wide powers granted to them by Parliament.  The terms of the EU Withdrawal Bill have resulted in these concerns being amplified.

Henry VIII and all that

A particularly controversial ingredient is the legislative device of so-called ‘Henry VIII’ clauses, whereby a Minister is empowered to amend or repeal primary legislation.  In this way legislation that has been enacted by the sovereign Parliament can be overridden by the Executive.

Such clauses are not new, but now figure prominently in the EU Withdrawal Bill, attracting particular disquiet.   The court’s role in protecting Parliamentary Sovereignty when reviewing Henry VIII powers has been described as “striking”[4] and such powers will be interpreted strictly where there is any doubt.[5]   “Although Henry VIII powers are often cast in very wide terms, the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.”[6]

The Bill contains several Henry VIII clauses of a very broad nature, in clauses 7 to 9, and clause 17.[7] These include the power to prevent, remedy or mitigate any failure of retained EU law to operate effectively or “any other deficiency in retained EU law” (clause 7), and to make such provision as is considered appropriate for implementing the withdrawal agreement on or before ‘exit day’ (clause 9).  In each such case in the Bill the regulations may be made by a Minister to “make such provision as the Minister considers appropriate”, indicating an apparently remarkably wide discretion, or at least a broad and ill-defined mandate.  A “failure” of retained EU law to operate effectively may refer to a technical problem, but it may also give rise to policy judgements about whether retained legislation is desirable or operating in an appropriate manner.

The implications of these features of the EU Withdrawal Bill, for the sovereignty of Parliament, the constitutional balance, and the rule of law, have been extensively publicly debated and are not explored further here.  They are nonetheless relevant to bear in mind in considering the role of judicial review in the post-Brexit era.

Judicial Review

First, a recap of the basics:  Judicial Review is the means by which the judiciary discharge their constitutional responsibility of protecting against abuses of power by public authorities.  It is an essential component of the rule of law, because it is the means by which public bodies, including Government Ministers, may be held to account by private individuals or bodies

Secondary legislation is subject to judicial review.  This allows the courts to ensure that the Executive branch has respected the limits of its authority that Parliament has given in the primary ‘empowering’ legislation.  If the Executive has exceeded that authority (or indeed on any other public law grounds, including whether it constitutes a proportionate restriction of fundamental rights), the secondary legislation may be declared invalid.

By contrast, of course, primary legislation cannot generally be declared invalid by the courts, at least once the supremacy of EU law has been set aside on Brexit – and subject to arguable extreme exceptions which have never arisen.  Even primary legislation that is incompatible with the European Convention on Human Rights may not be struck down:  the device that Parliament has created to deal with such a situation is the making of a declaration of incompatibility.  Thus, we have recently seen that Court of Appeal has declared that section 1A of the Fatal Accidents Act 1976 is incompatible with the Convention rights of an unmarried settled cohabiting partner, who could not recover statutory damages for bereavement in circumstances in which a married spouse could.  The offending legislation remains intact unless or until the legislature intervenes.

All this is elementary and easily illustrated.  A well-known recent example of the Court reiterating its power to strike down secondary legislation may be close to the home of many lawyers doing publicly funded work.  The Lord Chancellor sought to impose a requirement of UK residence in order to qualify for legal aid.  In doing so, he was proposing to to exercise a ‘Henry VIII’ power:  thus, to amend primary legislation using powers delegated to him by Parliament.  The Supreme Court held[8] that the proposed exercise of the powers was invalid, and beyond the scope of the Lord Chancellor’s delegated authority.   The fact that the power that was to be exercised was a ‘Henry VIII’ power was of relevance in the Supreme Court declining to adopt a broad interpretation of that power.

Another recent example is justly celebrated for Lord Reed’s explanation of how the right of access to the courts is inherent in the rule of law, clearly directed to policy makers who had evidenced a “lack of understanding” of this principle.[9]  The case of R (on the application of UNISON) v Lord Chancellor [10] involved the exercise of a statutory power by the Lord Chancellor to increase the fees in employment tribunals, and employment appeal tribunals.  The Supreme Court declared the Fees Order unlawful since it effectively prevented access to justice, intruding on that right to a greater degree than was necessary to achieve its purpose.[11]

These examples share at least two features.  First, they both involve access to the courts, a policy area in which it may be expected that the judiciary will feel more confident in intervening.  Context is, as always, important, but innumerable examples of judicial intervention to curtail the exercise of statutory powers in other areas can readily be identified.  Secondly, as it happens, the Lord Chancellor who was found to have exceeded the powers granted in primary legislation in both of the instances cited was the Right Honourable Chris Grayling, who perhaps did not earn a reputation as an acute observer of constitutional niceties during his tenure on the Woolsack.  Again, although accumulating an unenviable score sheet in the defence before the Courts of his executive decisions, examples of ministers over-reaching their delegated powers may be drawn more widely than from the decisions of Mr Grayling.

Scope for judicial review on withdrawal

The Government has estimated that between 800 and 1000 secondary legislative measures will be required to implement the objectives of the Bill, and this figure is subject to change depending on the outcome of withdrawal negotiations and policy changes.[12]

The decision of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 provoked an extraordinary level of interest and reaction. The Supreme Court’s recognition of the fundamental change to the UK’s constitutional arrangements, and to the rights of UK residents, which the decision to leave the EU will cause demonstrates the continuing potential for high level constitutional challenge to measures related to the process that lead to Brexit.

The House of Lords Constitution Committee consider that the EU Withdrawal Bill “raises fundamental constitutional questions about the separation of powers between Parliament and Government… [and] weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency.”[13]  At least in theory, other potential sources of such constitutional challenges include the revocability of an Article 50 notification or extension of the period; the scope for an agreed transition period to be implemented; the repatriation of powers to devolved settlements from previously EU competences, and the rights of EU citizens living in the UK – in particular, whether the Court of Justice is to retain any role in their adjudication.  Some of these may ultimately be issues of international law, on which the ECJ would be required to rule.  Notwithstanding the success of Gina Miller, whose case turned on the scope of powers under the Royal Prerogative, it may be surprising if the domestic courts had much enthusiasm for intervening to uphold challenges at this level.

More conventional challenges may be envisaged as arising from the vast mass of secondary legislation which will be needed to tear the patchwork fabric of EU law apart from our domestic law, and stitch it back as part of the domestic cloth.  Quite how and where these issues will arise cannot sensibly be predicted at a stage when the final form of the necessary primary legislation has not yet emerged, and is being vigorously debated.  Self-evidently, still less do we know what the mass of secondary legislation will look like.  It currently remains to be seen what, if any, trade agreement will be negotiated; how the problem of the Irish border will be addressed; and how the devolution issues raised by Brexit will be accommodated.

Notwithstanding all this uncertainty, some points are clear from the discussion above.

• First, there will be a vast mass of secondary legislation associated with our withdrawal from the EU.
• Secondly, the opportunity for scrutiny of such delegated legislation will be extremely limited, both as a result of its sheer volume, and also because in practice (even in the best of times) such regulations receive relatively little parliamentary scrutiny, whether subject to affirmative or negative parliamentary approval.
• Thirdly, at least a proportion of this legislation will involve potentially controversial policy issues, not simply mechanistic or anodyne amendments.
• Fourthly, there will be real issues in determining the status and interpretation of an entirely novel category of law: retained EU law.
• And finally, much of the legislation will be made pursuant to Henry VIII clauses which courts have been inclined to interpret strictly.

Will the Courts be ready?

A wave of post-Brexit legislation may therefore readily be predicted.  Legal uncertainty is a fertile breeding ground for litigation, and on any view the legal landscape after Brexit is an uncertain one.   This article has focused on the nature of issues that may be expected to emerge as claims before the Administrative Court, but other areas of the judicial system will also surely be subject to an increased burden of litigation.

The impending surge in demands upon the court system in general, and the Administrative Court in particular, raises serious questions as to the capacity of the courts to cope.  The system is already under severe strain.   On 2 November 2017 the Law Society suggested that a ‘no deal’ Brexit “could create a wave of litigation causing gridlock to UK courts”.  But that spectre is plainly not limited to the ‘no deal’ situation, and is liable to arise in any event.  This arises against the backdrop of the problem with recruitment to the judiciary in recent years, particularly acutely to the High Court Bench, to which no effective solution has yet been advanced.  Already the Administrative Court is heavily dependent upon input from deputies, as review of the court list for any day will confirm.  The Ministry of Justice is continuing to be subject to the most severe cuts:  on 20 November 2017, justice minister Dominic Raab confirmed that the MoJ will have suffered a cumulative 40% cut in real terms in the fiscal decade ending in 2020.  There is no sign of any plans being made to enable the judiciary and the Courts system to deal with the eminently predictable Brexit-related demands that will be placed upon them.  It is hard to imagine even Sir Humphrey chuckling now.

Angus McCullough QC is a barrister at 1 Crown Office Row.

This is a version of an article that appeared in the December 2017 issue of Counsel magazine and is reproduced, with thanks, with their permission. The original article can be found here: https://www.counselmagazine.co.uk/articles/eu-withdrawal-bill-and-judicial-review-are-we-ready 

[1] Lord Neuberger, among many others, has commented publicly articulating detailed concerns in this regard.

[2] The Delegated Powers and Regulatory Reform Committee; a Select Committee of the House of Lords

[3] Also a Select Committee of the House of Lords

[4] Lord Neuberger, R (Public Law Project) v Lord Chancellor [2016] UKSC 39 at para 25.

[5] For example, in Spath Holme Limited [2001] 2 AC 349.

[6] R (Public Law Project) v Lord Chancellor at para 26:  Lord Neuberger quoting Craies on Legislation , 10th ed (2012), ed Daniel Greenberg

[7] The Government has recently announced its willingness to restrict the scope of the Henry VIII powers in the Bill, but at the time of writing the form of this concession remains to be considered and debated.

[8] R (Public Law Project) v Lord Chancellor [2016] UKSC 39

[9] Anyone who has not done so – lawyer or not – is encouraged to read paragraph 66 onwards of this judgment.

[10] [2017] UKSC 51

[11] See paragraphs §90-103 of the judgment of Lord Reed JSC.

[12] Department for Exiting the EU, White Paper: Legislating for the United Kingdom’s withdrawal from the European Union, 15 May 2017.

[13] 3^rd Report of Session 2017-19.