Brexit - who has the power to change UK law?

There are two kinds of general European Union laws. EU Regulations are directly effective in all member states.  In the UK, this is recognised by Section 2(1) of the European Communities Act 1972, which provides that:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly...

EU Directives are not directly effective, and need to be enacted in each member state in order to achieve the goal set out in the Directive.  In the UK, this is sometimes done by primary legislation (Act of Parliament), which is, for example, how the Trade Marks Directive (89/104/EEC, later repealed and replaced by EU Directive 2008/95/EC and then further amended by Directive (EU) 2015/2436) was implemented as the Trade Marks Act 1994.

But a Directive can also be implemented by secondary legislation - a Statutory Instrument in the form of an Order in Council, which receives only minimal Parliamentary scrutiny.  The power to do this is set out in Section 2(2) of the ECA, which provides:

Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision—
(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid.

It was a departure from the previous general constitutional order in the UK that legislation could be made, and even primary legislation amended, by secondary legislation.  The Designs Directive was implemented in this manner, wherein SI 2001 No. 3949 amended the Registered Designs Act 1949 to produce an effectively entire new act, within the shell of the original.

Some readers may recall that the constitutionality of this was challenged in the case of Oakley v Animal, reported by the IPKat here.  The argument was that where the Directive allowed some latitude in the manner of its implementation, the decision as to which of several available options to adopt was a matter of legislative discretion that constituted a power not given to a Minister under Section 2(2) ECA, but required an Act of Parliament.  That argument was rejected.

The Registered Designs Act has been further amended by primary legislation, for example in the IP Act 2014.

It is estimated that there are 1000s of Statutory Instruments (nobody knows the precise number in force) made under s 2(2) ECA, and so it is of great concern what happens to them if the UK leaves the EU.  While some commentators have argued that the ECA does not have to be repealed on departing the EU (it can remain in place but with no "rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties" to bite on), many assume that it will have to be repealed or at least amended.  It was for that reason that the IPKat was keen to know what is the default position if the ECA is repealed.  Scott Wortley has in response blogged an argument, that this Kat finds compelling, that the SIs will fall away if the ECA is repealed.

But in fact, whatever is the default position, before any exit from the EU, some functionary will have to scrutinise all the SIs in force and decide which should stay, which should go, and which should be retained in amended form.  There are some SIs, such as SI 2001 No. 3949 amending the Registered Designs Act 1949 mentioned above, that it would be pretty catastrophic to lose.  Some will be clearly in applicable or nonsensical if the UK is not in the EU, and these will need to be repealed.  Others it will be probably be desirable to retain, but they may refer to an EU institution or law that no longer applies and they will need amending - the problem is that this will then probably need to be done by primary legislation, and where will the Parliamentary time come from?  A blanket saving or repealing provision will not suffice - there needs to be decision taken on each individual SI.

Against this background, this Kat finds it rather surprising that the Government considers that the taking and notifying a decision to leave the EU is a prerogative power and not a Parliamentary power.  Moreover, until yesterday its reasons to think this were secret.  There is shortly to be heard in the Divisional Court of the Queen's Bench a legal challenge to the proposition that the Government can take a decision to leave the EU and notify this under Article 50 of the TEU without any Act of Parliament.  (There is a similar challenge being heard in the High Court in Belfast). But the Government secured an order (at the hearing that this Kat reported here) keeping the submissions secret, until yesterday when this was successfully overturned by the challengers.  So now, the arguments of both the challengers and the Government can be read - see here and here.

This Kat is not an expert on constitutional law or international law, although he is learning more and more about it as these events are unfolding, and so will not attempt to comment in detail on the arguments.  In summary, however, the Government's legal position appears to be that signing up to international treaties is a matter for the Crown, not Parliament, and is not justiciable by the Courts.  But this seems to be only partially true.

Signing up to a treaty happens in two stages.  First, the treaty is signed, but at that stage it has no legal effect.  Then, at least in the UK procedure, if the treaty has an effect on domestic law, Parliament must pass an Act conforming UK law to the requirements of the treaty.  Then, and only then, can the treaty be ratified, whereupon (once the treaty comes into force) it becomes legally effective with respect to the UK.  While the procedures of signing and ratification are Crown acts that are performed by the Government under prerogative powers, the requirement for an Act of Parliament in between effectively gives Parliament the ultimate decision as to whether the UK becomes bound by the treaty.

This process can be seen, for example, in respect of the Unified Patent Court Agreement.  It was signed by a Government minister in 2013.  But then in the IP Act 2014 Parliament gave the Government the legal power to enact a Statutory Instrument to give effect to the UPCA, and this was enacted as the Patents (European Patent with Unitary Effect and Unified Patent Court) Order 2016 - SI 2016 No. 388 passed on 12 March 2016.  Only now can the Government deposit an Instrument of Ratification, which of course it has not done because of the intervening Referendum result.  (A similar order of events happened with the Patents Act 1977, which enabled the ratification of the European Patent Convention.)

Similarly, if Parliament had not passed the ECA 1972, the UK would not have been able to join the European Communities (as they then were).

So it seems odd if the Government can take a decision under Article 50(1) and notify it under Article 50(2) TEU, which will inevitably result in the UK leaving the EU, without the equivalent intermediate step of a Parliamentary enactment.

Another way of seeing the inconsistency of the Government argument is this.  If the Crown has the power to leave the EU without Act of Parliament, then it has always had it.  The Referendum Act contains no provision that alters the constitutional position - it provided for a referendum on EU membership, defining the question to be asked, but without specifying what was to be done with the result.  For that reason it is often referred to as "advisory".  Therefore, if the Government has the power to take the UK out of the EU today, then it equally had the power one year ago.  But I do not think anyone would have seriously argued before the Referendum that the Government could take the UK out of the EU under prerogative power without any Parliamentary approval.

The Government argues that Parliament will of course have a role in any repeal or amendment of the ECA 1972 and other EU-related legislation during the leaving process.  But since Article 50 leads inevitably to the leaving of the EU (at least according to most commentators, and this seems the most likely correct interpretation), then once a notification of a decision to leave the EU has taken place, Parliament has no choice but to repeal or amend EU-related legislation according to the new reality.  It is deprived of any genuine political decision-making power.

This Kat will be following the Court cases with great interest.  For commentators more knowledgeable than him, he suggests David Allen Green, who blogs as Jack of Kent.  In the meantime, comments are warmly welcomed.