Retained law and the EU Withdrawal Bill

‘Retained law’: defined

 

The concept of ‘retained law’ is essential to an understanding of how the EU withdrawal bill  cls 2 to 6 are intended to work. This will define what EU law is to stay in UK law and what laws are intended to develop from ‘exit day’? In what follows these clauses will be considered followed by a guide to the powers retained by ministers further to amend primary legislation by delegated powers (‘Henry VIII powers’) in cls 7-9. For the family lawyer the position under retained law must then be compared with each individual case with a EU component: that is where one or both parents are in another EU country and the children (with the other parent or looked after by a local authority) remain in UK or are in a EU country.

 

Clause 6 defines what forms of law will be retained according to the following definitions in cl 6(7):

 

  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision in cl 5;
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of cls 2, 3 or 4 or sub-cls 5(3) or (6).
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day.

 

Cls 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,…

 

Cl 5 defined the intended status of retained EU law (see (3) above):

 

  • Cl 5(1) provides that the principle of supremacy of EU principle no longer applies to any enactment or rule made or passed on or after exit day.
  • Similarly, cl 5(2) provides that the EU supremacy principle does apply when questions arise after exit-day as to the interpretation, disapplication or quashing of pre-exit enactments and rules; and
  • Cl 5(3) says that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that ‘the application of the principle is consistent with the intention of the modification’.

 

The effect of these provisions is that for retained EU law will the EU supremacy principle will apply to pre-exit day legislation, but not after exit day. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law. As already mentions, cl 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day; though, for the avoidance of doubt, under cl 5(5) fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself. To that extent it therefore remains part of domestic law.

 

Interpretation of ‘retained EU law’

 

Cl 6 provides for ‘Interpretation of retained EU law’. Courts are no longer to be bound by decisions of the CJEU, from exit day; and no case or other matter can be referred to the European Court after that day (cl 6(1)). No court need ‘have regard to anything done on or after exit day by the European Court [unless] it considers it appropriate to do so’ (cl 6(2)). Thus decisions of the CJEU made after exit day will not be binding on UK courts and tribunals; domestic courts cannot refer cases to the CJEU on or after exit day; and UK courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

 

Cl 6(3) requires courts national courts to resolve questions regarding the validity, meaning or effect of retained EU law in accordance with the case law of the Court of Justice and general principles of Union law as both existed at the date of the UK’s departure from the EU. The ‘explanatory note’ to the bill expands on this: any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre‐exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the travaux preparatoires (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law).

 

After exit day UK courts will also no longer be able to refer questions concerning the interpretation of Union law to the CJEU. Clause 6(4) of the Withdrawal Bill substitutes the UK Supreme Court for the CJEU when it comes to issuing binding interpretations of retained Union law. Both national courts will also enjoy exclusive competence to depart from previous decisions of the EU Court where they consider it ‘right to do so’ – following established domestic rules on judicial precedent (cl 6(5)).

 

All that said, s 6(2) affords domestic courts – under the leadership of the Supreme Court – a discretion to develop, or at least to permit, continued links with the EU jurisprudence after exit day.

 

Henry VIII powers

 

Cls 7, 8 and 9 provides ministers with substantial powers by order or other delegated legislation to amend statutory provisions: that is by ‘Henry VIII powers’. First a Henry VIII power must be defined. This was done recently by Lord Neuberger in the Supreme Court in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387 where he explained that the term, by reference to Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9 as ‘commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.’ He continued:

 

[25] … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.

[26] … In the case of an “amendment that is permitted under a Henry VIII power”, to quote again from Craies (above) para 1.3.11: ‘…as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words 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.

 

Each of the three clauses provide a similar formula, first to deal with ‘deficiencies arising from withdrawal’, thus:

 

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

 

Similar sub-clauses are included for complying with international agreements (cl 8) and for implementing withdrawal (cl 9); and all three clauses (7(4), 8(2) and 9(2)) add the henry VIII cover provision: that any ‘Regulations under this section may make any provision that could be made by an Act of Parliament’. And then, if that is challenged in the High Court the courts, says Lord Neuberger, must check whether the power was in truth ‘outside the legislature’s contemplation’ though subject to the fact that in each case the powers are not general, but are granted in each clause for specific purposes.

Advertisements

Brexit: retained law and family proceedings

Family law after EU withdrawal

 

The pending process of EU withdrawal leaves English lawyers in a similar position, I suspect, to Anglo-Saxon lawyers immediately after the Battle of Hastings in 1066 (with the Tory Government now standing in as William the Conqueror’s victorious barons). How much of their law, they wondered, would survive the Norman Conquest? In the case of modern lawyers and Brexit, 950 years after the Norman arrival, what retained law will be permitted following passage of the European Union (Withdrawal) Bill (‘the withdrawal bill’), now before Parliament?

 

The starting point for this article (and its accompanying explanation) is Brexit and Family Law (October 2017; the ‘family law withdrawal paper’ or FLWP) published by FLBA, International Academy of Family Lawyers and Resolution who describe themselves as ‘the lead specialist family law practitioners’. The paper is a short (18 page) document which aims to produce recommendations as to where reciprocal family law arrangements (if any) should go following EU withdrawal.

 

An immediate problem is that it makes no attempt to explain the proposed statute law – still only in a bill, I accept – to its readers. In particular it does not explain the critical feature of the bill namely ‘retained law’ (cl 6). It makes no explicit reference to the extent to which the common law may be able to adapt principles of EU law to family proceedings. And it proposes an option for law reform (‘Option (i)’) which, save with a very large amount of EU good-will and law reform, is impossible to achieve.

 

This article outlines some of the family law issues and aims only to introduce EU withdrawal. It will be backed by future articles which will expand on what is said in summary here, and will proceed as follows:

 

  • The background to the withdrawal bill
  • A summary of the content of the bill
  • A review of the options in the FLWP
  • Thoughts on where now for family law reform; and suggestions in areas where FLWP seemed reluctant to tread…

 

Background to the bill

 

In a referendum in June 2016 United Kingdom has been treated as having voted to leave the EU. On 16 March 2017 European Union (Notification of Withdrawal) Act 2017 received royal assent. A EU (Withdrawal) Bill (‘withdrawal bill’) is now before Parliament. Clause 1 of the bill repeals European Communities Act 1972 (ECA 1972) from the date of exit from EU. It must be assumed that at the end of March 2019 (if Mrs May gets her way) UK law will no longer be governed by EU legislation. The question for any lawyer – by which I mean here, any family lawyer – is, what will be left of EU law once that happens.

 

The withdrawal bill is the only source material accompanied by the Department for Exiting the EU (‘DExEU’) euphemistically named ‘future partnership papers’ (little or none of which – bill or partnership papers – are given any prominence in the withdrawal paper). The paper which includes reference to EU-UK family litigation is Providing a cross-border civil judicial cooperation framework. It is a brief, bland document intended – touchingly – to ‘establish a deep and special partnership [for UK] with the EU’. On inter-EU country co-operation it includes:

 

6 Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border situations. In particular, this framework provides rules to determine which country’s courts will hear a civil, commercial or family law case raising cross-border issues (jurisdiction); which country’s law will apply (applicable law); and enables a judgment obtained in one country to be recognised and enforced in another (recognition and enforcement)….

 

Any court order is only worth the extent to which it can be enforced (a point made, though not developed, by the Brexit paper). A parallel partnership paper is intended to deal with, Enforcement and dispute resolution. This paper is innocent, it seems, of the need for a court back-up: the bill abolishes in UK of the Court of Justice of the European Union (‘CJEU’):

 

The papers show little awareness in DExEU of the extent that cross-border families – as will appear from examples given separately – depend on the co-operation of courts in individual EU countries; and of the fact that the final arbiter of this co-operation is CJEU. Such cases as Re Rinau (Case C-195/08) [2009] Fam 51, [2008] 2 FLR 1495 (relied upon by the Court of Appeal in Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347) shows only too clearly how essential CJEU law is to UK family law. Child and Family Agency v JD (Case C-428/15) EU:C:2016:548 [2017] 1 FLR 223 show the importance of cooperation between jurisdiction for example under Brussels IIA Art 15.

 

European Union (Withdrawal) bill and retained law

 

Under a sub-heading ‘Retention of existing EU law’ cls 2 to 6 of the bill defines what EU law is to be retained by UK institutions. The term ‘retained law’ is essential to an understanding of how the law is intended to develop from the ‘exit day’ when EU withdrawal happens; and it is these laws which will – or will no longer – underlie our advice to clients and children.

 

Clause 6 defines what forms of law will be retained:

 

  • ‘retained case law’ is composed of ‘retained domestic case law’, and ‘retained EU case law’; both depend on what the law is held to be ‘immediately before [EU] exit day’
  • ‘retained domestic case law’ means case law – ie principles laid down by, and any  decisions of, a UK court or tribunal – as they apply immediately before exit day.
  • ‘retained EU case law’ means any principles laid down by, and any
    decisions of, the CJEU, as they have effect in EU law immediately before exit day and subject to the relator provision (above);
  • ‘retained EU law’ means anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above.
  • ‘retained general principles of EU law’ means the general principles of EU law, as they have effect in EU law immediately before exit day and subject to the relator provision (above);

 

Clauses 2 to 5 define how EU law is to be dealt with in UK courts. EU-derived domestic legislation continues to have effect in domestic law, as it has done before exit day (cl 2(1)). By cl 2(2) ‘EU-derived domestic legislation’ is defined as any legislation made under ECA 1972, any direct EU legislation (ie EU legislation as operative immediately before exit day (cl 3(1); eg Brussels IIA – so far as still enforceable); and so far as it is not exempted by later provisions in the bill. Clause 4 makes provision for preservation for UK individuals of:

 

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day— (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972,..

 

Rights; or ‘rights undermined’…

 

Of retained rights it will be recalled that R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 at [69]-[73] (not referred to in FLWP), included the following of Brussels IIA:

 

[71] … Some rights falling within one category may be closely linked with rights falling within another category. For example, the rights under [Brussels IIA],would be undermined if a domestic judgment governing the residence of a child could not be enforced outside the UK.

 

Brussels IIA will be direct EU legislation; but as is emphasised by Miller it operates only so far as it goes since its operation depends on the co-operation of EU member states; and no-one knows yet how far such cooperation – if any – will be forthcoming.

 

By cl 5(4) the EU Charter of Fundamental Rights (which in important respects extends European Convention 1950) ceases to be part of domestic law on or after exit day. However, according to clause 5(5), fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself and can therefore form part of domestic law.

 

The Charter is critical to English children law (as Re D [2016] above, reminds us):

 

[15]   Recitals 12 and 13 [of Brussels IIA] deal with the underlying philosophy which is decision making based on the best interests of the child and recital 33 incorporates the fundamental rights of a child in the EU as set out in Art 24 of the Charter… which states:

‘(1) Children shall have the right to such protection and care as is necessary for their well-being. They may also express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

 

Clauses 2-4 propose that most existing EU law remains part of UK law; but cl 7 and Sch 7 recognise that a proportion of EU law will either be inappropriate following exit, or can only work in UK if modified (because, for instance, it presupposes things that no longer apply following withdrawal). Consequently cl 7 confers powers on Ministers of the Crown to amend, repeal or replace retained EU law – that is, what was originally primary legislation – by making administrative regulations also known as Henry VIII powers (as recently explained by Lord Neuberger in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531 at [25]). Thus cl 7(1) enables a government minister:

 

(1) … by regulations [to] make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

  • any failure of retained EU law to operate effectively, or
  • any other deficiency in retained EU law, arising from [EU withdrawal].

 

Recent case law examples

 

A variety of recent cases show the importance of EU legislation, pre-eminently Brussels IIA; and all our courts which deal with family law – even up to Supreme Court (see eg Re B (A child) [2016] UKSC 4, [2016] AC 606, [2016] 1 FLR 561) – are fundamentally influenced by CJEU jurisprudence. Such cases as B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam) (09 May 2017), MacDonald J and Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings) [2017] EWFC B82 (OJ) (19 September 2017), HHJ Carol Atkinson as High Court judge provide examples from the financial relief and public law children jurisdiction, of the importance of EU legislation to UK family law.

 

Meanwhile in FE v MR & Ors [2017] EWHC 2298 (Fam) (14 September 2017), Baker J considered Brussels IIA Art 15 in relation to recognition and enforcement of family court orders so that a UK court (as the court of a member state (a requesting court)) can request the court of another member state (Spanish), where the requesting state might ‘be better placed to hear the case’ (Art 15.1.

 

Options and the EU withdrawal paper (FLWP)

 

FLWP (the FLBA etc withdrawal paper) summarises its exit day ‘Options for family law’ as follows (at pp 14-17). It touchingly hopes for inter-EU member agreement with its deserting ‘partner’ (ie UK). ‘Option (i)’ is to retain full reciprocity. It is said the UK Parliament ‘could replicate the EU instruments in our own domestic law and maintain the existing reciprocal arrangements between the UK and the other EU member states’. (The paper talks of ‘UK’; though it is not clear to what extent its authors speak for Scotland and Norther Ireland.) This option does not acknowledge the need for reciprocal legislation from all EU state.

 

‘Domestication without full reciprocity’ is regarded as ‘completely unsatisfactory’, the ‘worst of all outcomes’, now or in the long-term; but this is what the bill and Miller – unmentioned by the authors – anticipated. And this is what seems to be the outcome envisaged by the EU withdrawal bill, the specific consequences of which are not reviewed by FLWP.

 

The recommendation is for ‘our own bespoke arrangement’ – the term used by the authors, in effect, for their anticipated procedural law reform – to provide a ‘new framework for family law co-operation between the UK and the EU’. This is the firmly preferred outcome; but merits only two paragraphs in the paper. No evidence is provided that all – or indeed any – other EU jurisdictions will agree to reciprocate with English courts as has been EU law up to now. In default of agreement, our clients must be told that the best option would take ‘a very long time to consider, negotiate and put into place’… ‘It will not be possible to agree a bespoke arrangement by 2019 given the enormity of the task.’ If the Government tips us off the cliff then: what next?…

 

What is to be done?

 

Option (iii) proposed by FLWP and its not-possible-to-deal-with-it-by-2019 is unsatisfactory. It is like saying: it will take too long to put together a defence – whether in war or as advocate in a case – so we won’t defend. It is to think that the opposition – in this case the Government – will just say ‘OK that’s fine we’ll leave the law as it is’; and all the EU member states will say ‘there, there of course our judges must go on co-operating with you, even though you’re outside the EU now…’.

 

I rather think it may not work like that. Lawyers have had since June 2016; and there are 15 months to go (say till around March 2019) to ‘agree a bespoke arrangement’. Harold fought off the Danes at Stamford Bridge, and then managed to turn up – and nearly to win – the Battle of Hastings. If other EU courts will not co-operate with English courts – and do we yet know that they won’t? – and if falling off the EU reciprocity edge is to be softened as much as possible, our MoJ and DExEU will need to do something – if only, at least, to protect the rights of children which may be lost.

 

The following questions may provide a start:

 

  • To what extent can we do we have to do reciprocal jurisdiction deals with individual EU countries; or will they expect – or agree to – an approach common to all respective 27 jurisdictions?
  • To what extent can we model arrangements on reciprocal arrangements with other non-EU nation jurisdictions?
  • Are there any international agreements as to how children’s views should be received in proceedings which concern them (see eg Re D [2016] (above))?