Brexit Committee questions Ekins and Laws on legal and constitutional aspects

Oct 16, 2017

Everyone has questions about Brexit. But perhaps the most significant are those being asked by the House of Commons’ Exiting the EU Committee, which, on Wednesday, held its first hearing of this parliament. The committee’s official purpose is to ‘examine the expenditure, administration and policy of the Department for Exiting the European Union and matters falling within the responsibilities of associated public bodies’, and, last month, it launched two inquiries: The progress of the UK’s negotiations on EU withdrawal and The European Union (Withdrawal) Bill.

It was with an oral evidence session for the second of those inquiries that the committee publicly recommenced. The bill being scrutinised is at the heart of the Brexit process, and had its second reading in the Commons at the start of September, although the subsequent committee stage is yet to be scheduled. The head of Policy Exchange’s Judicial Power Project (JPP), Professor Richard Ekins of the University of Oxford, was questioned by the committee in this opening session, alongside fellow witnesses, Sir Stephen Laws, former First Parliamentary Counsel, and frequent JPP contributor; Sir Konrad Schiemann, former judge, Court of Justice of the European Union  (ECJ) and the Court of Appeal; and Dr Charlotte O’Brien, Senior Lecturer, York Law School. The hearing focused on the constitutional and legal aspects of the bill, but extended to the Brexit process more widely, with questions ranging from the future role, if any, of the ECJ, to the provision that could be made for a ‘transition period’.

Committee chairman Hilary Benn’s opening question recalled Lord Neuberger’s recent comments asking for clarity on what UK courts should do regarding ECJ judgments following Brexit. Ekins responded that Neuberger was ‘right in general that political choices are for political authorities’ and that the courts should have ‘as much guidance as possible’, but that one needs not to be especially worried about whether it is made clear enough to UK judges what relevance post-Brexit ECJ judgments should have, as the bill is clear that they will then be ‘those of a foreign court’ — some of which will be relevant, and some of which will not. Schiemann pointed out that, as a judge, he had sometimes taken into account French or Israeli courts, but that he understood Neuberger’s wish to ‘put up an umbrella to protect judges’. Laws commented that express provision in the Human Rights Act about the use of jurisprudence had the effect that it was treated differently from how it would be  ‘without statutory provision’. In that context, the concept of ‘appropriateness’ was problematic, and the matter would be better dealt with in the context of the effect of the repeal of s.3 of the ECA. Ekins added that the difference in this case would be that, after Brexit, the UK wouldn’t be subject to international obligations to follow EU law, which would mean that it would be clearly wrong for UK courts to treat post-Brexit ECJ judgments in the way they respond to ECtHR judgments.

Responding to technical questions over how the bill attempts to retain EU law after exit day, the witnesses agreed that there would be a need for later correction via secondary legislation. Ekins emphasised that clause 7, which confers power to make changes in response to legal deficiencies arising out of withdrawal, was deliberately broad because one person’s technical change could be another’s policy amendment. In our constitution, it should be for MPs to scrutinise the propriety of uses of this broad power, not for courts to adjudge whether something is truly technical or necessary. Laws agreed with Ekins on the need to avoid unnecessary judicial challenges by removing uncertainty in advance, where possible. It was clear that the trigger for the use of the clause 7 power is a technical deficiency, but it would be impossible to draft a power that would exclude policy issues from the ways of responding to a deficiency without unduly narrowing the power and creating undesirable legal uncertainty.

Discussion then turned specifically to the ‘transition period’. John Whittingdale asked what provision there was for this in the bill, given that it had been ‘written on the premise’ that the UK would be leaving the EU in March 2019. Laws answered that the powers in clause 17 to make legal changes consequent on the bill meant that what was necessary would be able to be ‘kept alive and then allowed to die’, in order to have ‘the pieces in place’ when needed. The committee was highly interested in Ekins’ subsequent comment that an exit day was not actually specified in the bill, with Benn asking whether that meant there could be ‘different exit days for different purposes’. The witness concurred, with Laws clarifying, however, that ‘the power to appoint different commencement days for different purposes of the bill doesn’t mean that the day we exit is going to be on more than one day — we are going to exit the European Union when we exit the European Union’.

When Stephen Timms asked what might arise from the ‘loss’ to UK law of the Charter of Fundamental Rights of the European Union, there was a difference of opinion between the witnesses. Ekins said that this would not undermine existing legal rules, was consistent with removing a cause of action based on general principles of EU law alone, and was a sensible constitutional change, eliminating a major source of uncertainty. Laws agreed, explaining that ‘preserving inconsistencies in the law between general principles and detail’ didn’t seem to him to be desirable, and that, ‘given the choice, I would choose the detail’.

Plaid Cymru’s Hywel Williams moved the discussion to devolution, by asking the witnesses’ opinions about the well-known claim that the bill represented a ‘power grab by Westminster’. Ekins said that he thought, rather, that, by preserving the status quo on exit day, the bill aimed to put off, until later, questions about how to recast the devolutionary scheme. Laws argued, to similar effect, that it would be very tricky to change the devolution scheme consequent on Brexit without sorting out the related budgetary questions at the same time, and that this meant that, for the time being, it made sense to keep to the default, with decision-making at the UK level.

The committee’s final questioning, led by Richard Graham, related to suggestions that the ECJ could have a continuing role for EU nationals living in the UK, post-Brexit — specifically, was there precedent for any foreign court to have a say in matters of UK law, and was there precedent for the ECJ to play such a role in any non-EU country? Ekins replied that the role that was proposed for the ECJ to enforce EU citizens’ rights in the UK was both ‘unprecedented’ and ‘remarkable’ — later adding ‘outrageous’. He argued decisively that no sovereign state would commit itself to the jurisdiction of a tribunal that was a part of the body with which it was in dispute.

The many questions of Brexit continue, but it is heartening to see the level of scrutiny being applied to the European Union (Withdrawal) bill by the Brexit Committee and its witnesses, not least regarding the complex legal and constitutional implications of the exit process.

Author

Rebecca Lowe

Rebecca Lowe
Fellow, State & Society and Judicial Power Project; Convenor of Research Group on Political Thought 2016–17 Read Full Bio

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