Empty Threats: The Explanatory Notes to the European Union (Withdrawal) Bill

Today, the British government published its European Union (Withdrawal) Bill, the legislation designed to give statutory effect to Brexit. There is much of interest in the Bill, which will be debated in the autumn. Clauses 1-6 form a swamp of definitions, rules and standards designed to avoid chaos by ensuring that EU law remains enforceable in the immediate aftermath of Brexit.  Even seasoned lawyers are not going to enjoy navigating these provisions.

But my main interest is in the ministerial regulation-making powers (here and here), a topic I suspect I will post about more than once between now and the autumn. For now, however, I want to return to a theme I have covered before, namely the post-Brexit status of EU nationals in the United Kingdom.

The following passage in the Explanatory Notes to the Bill caught my eye. It appears in a section containing examples of potential uses of “a power to enable ministers to correct problems arising from withdrawal”. This power is contained in clause 7 of the Bill:

In the Explanatory Notes, we are told:

Once the UK leaves the EU, there will be areas of law where policy no longer operates as intended. One element of EU law is reciprocal arrangements between states including reciprocal rights of citizens. As a matter of international law, those obligations will fall away for the UK at the point where the UK leaves the EU. At the same point, EU states’ obligations to the UK and its citizens will also fall away. Any such obligations beyond that time would only exist if they were agreed between the EU and the UK as part of the negotiations that have recently commenced. However, without a correction, the UK’s law would still include recognition of the EU citizens’ rights. The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals (my emphasis).

Frankly, this is bizarre, for a number of reasons. First, this threat is likely to underscore the widespread perception that the United Kingdom government is intent on reducing rights currently enjoyed by EU nationals based in Britain. In particular, it is difficult to imagine this passage being well received in the offices of the EU officials charged with negotiating the Article 50 withdrawal agreement, of which citizens’ rights is an important preliminary aspect.

Second, the other examples given in the section of potential uses of the power to “correct problems” are wholly uncontroversial. The section begins by referencing terms “which will no longer be accurate once the UK leaves the EU, such as references to “member states other than the United Kingdom”, to “EU law”, or to providing for the UK’s “EU obligations””. These will obviously need to be altered and doing so by regulation is a sensible (though not the only) way to do so. The reader also learns that “many functions currently performed by EU bodies] may need to be transferred to appropriate bodies in the UK for them to continue”. Again, it is surely uncontroversial that “the power to deal with deficiencies would enable this”. But these are, (a) purely technical matters, on any definition, and (b) must be resolved, one way or another, in order for the statute book to operate coherently after Brexit. Coming after these important, technical matters, the threat about citizens’ rights is incongruous, to say the least.

Third, and worst of all, it is not at all clear that the “power to deal with deficiencies” could actually be used to carry out the threat in the Explanatory Notes. Although clause 7(4) can give the force of primary law to regulations introduced to “deal with deficiencies”, the ends to which clause 7(4) can be put depend on the overall objectives of clause 7.

To begin with, it is difficult to see how EU nationals enjoying continued rights would, as clause 7(1) puts it, cause retained EU law to fail to operate effectively or cause any other deficiencies. It seems to me (although I am not confident of my ability to navigate the swamp unguided), the relevant immigration regulations would simply continue in force under clause 2. The potential embarrassment for the UK goverment of EU nationals enjoying more rights than UK citizens at home or abroad is hardly an operational problem or a deficiency.

Moreover, clause 7(2) contains a non-exhaustive list of ends to which clause 7 might be put; all of these are banal. That none of them comes close to eliminating EU-law rights strongly suggests that this is not the sort of action that is authorised by clause 7.

Finally, clause 7(6) contains a number of limitations: clause 7 cannot be used to tinker with the Human Rights Act, for instance; and, in particular, cannot be used to “make retrospective provision”. It is at least arguable that the elimination of an existing EU-law right would amount to a prohibited “retrospective provision”.

The reader is led inexorably to the conclusion that for any one of these reasons, alone or in combination (and I have not even mentioned the ‘principle of legality’, which might also be engaged), that any regulation purporting to carry out the threat in the Explanatory Notes would be ultra vires, that is, simply outside the scope of clause 7. It is the emptiest of threats.

This content has been updated on July 13, 2017 at 20:51.