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Legal academic (PhD) Env. & HR. Brexit is bonkers & Trump is the biggest threat to mankind after climate change. Anti-fascist pro-equality.

Mar 15, 2018, 20 tweets

a. The HoLs Constitution Committee stated the EUW Bill ‘risks fundamentally undermining legal certainty’. The statement echoes concerns that are reverberating through the UK legal system whilst being overlooked in the Brexit debate. Here are the issues:

b. The Committee’s view echoes mine: crucial sections of the Bill are ‘conceptually flawed’ & that ‘retained EU law’ should form part of an Act of Parliament on Brexit day in order to safeguard legal certainty.

c. There is an insidious fallacy from Brexiteers that we are returning sovereignty to Parliament and 'taking back control' of our laws. The harsh legal and constitutional reality of the Bill demonstrates this to be nothing but a fetish. We will be doing nothing of the sort. #FBR

d. The legal nature of EU-derived domestic legislation is simple: it is ‘already either domestic primary legislation or domestic secondary legislation; and under the Bill, it will have the same status post-exit as it had pre-exit’. So, NO CHANGE there, none.

e. The problems arise from 'retained direct EU law': the Bill is 'silent' regarding the post-exit position concerning such law. Essentially, it does not correspond to any pre-Brexit law that currently has an established domestic status. See Clause 3 EUW Bill.

f. According to the Govt, retained direct EU legislation ‘was not made by UK legislators’ and will ‘have a unique status within the domestic hierarchy’ and it should be treated as neither domestic primary nor secondary legislation. This assessment can be confidently rejected.

g. The Committee points out ‘Retained direct EU law will be domestic law’, and there is ‘no reason why Parliament cannot or should not assign to [such] law a recognisable domestic legal status’. It has been recognised as having domestic legal status, so should continue to do so.

h. Clause 17 is a major concern as the legal status of individual pieces of retained direct EU law will be determined at ministerial discretion. It is 'constitutionally unacceptable' for ministers to decide whether such law should be regarded as primary or secondary legislation.

i. ‘A recipe for confusion and legal uncertainty’ will be created by the Bill assigning domestic statuses to retained direct EU law for LIMITED purposes. It will have a status for some purposes, a different status for other purposes & yet no status at all for further purposes!!!

j. Cl. 5 seeks to ascribe a ‘supremacy principle’ to retained EU law but will not operate in relation to legislation enacted after exit day (but will for legislation enacted prior); this STOPS pre-exit domestic law prevailing over retained EU law. Not taking back control then...

k. In the Committee’s view, the notion of the supremacy of retained EU law is ‘conceptually flawed, sits uncomfortably with the doctrine of parliamentary sovereignty & is a potential source of legal confusion’. Regardless EU law will still be given precedence domestic law.

l. There is no clarity about the intended scope of the supremacy principle. Retained EU law will benefit from the principle if it corresponds to pre-exit EU law that itself benefitted from it; it's not clear when the principle is intended to effect other forms of domestic law.

m. The Solicitor General rightly suggests that the EU law ‘supremacy principle’ applies to both legislation and the common law; they don't function in a vacuum. The construction of the common law post-Brexit also requires an amendment of the Bill to find legal certainty.

n. This is where the fantasy of 'taking back control' is revealed: the EUW Bill will, in its present form, enshrine a principle of EU law that only has meaning and application in relation to EU law into domestic law. This is a fundamental flaw in the Bill and the Leave rhetoric.

o. At present, the EUW Bill is inconsistent with UK constitutional principle, in particular parliamentary sovereignty. If retained EU law was made into an Act, EU law would prevail over earlier inconsistent legislation, while subsequent legislation would prevail over it.

p. An Act of Parliament (enacted on Brexit Day) would also remove uncertainty regarding the operation of the ‘supremacy principle’ within the common law; thus would operate according to constitutional principles that govern the relationship between Acts and the common law.

q. The incoherent manner in which the Bill will operate is consistent with the rush job that forced the Govt to cut and paste 40+ years of legislation. It has served to increase legal confusion in the definition, effects and constitutional status of retained EU law.

r. The Bill will not excise EU law from domestic law. Retained direct EU law, after exit day, will not only function contrary to the doctrines of the UK constitution but will be dependent upon the externally-derived doctrines of the EU. It will be an interpretative nightmare.

s. If Leavers only knew the reality of the Bill they would be protesting in the streets. Instead of taking back control and returning our sovereignty, the Bill enshrines EU legal principles, flouts parliamentary sovereignty and sends the legal system into utter disarray. Ironic?

please unroll, many thanks.

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