7: Great Repeal Bill – Treat me nice
This post is the first in a mini-series looking at particular elements of the ‘acquis communautaire’ (the ‘body of EU law’) being transposed by the GRB into UK law. It considers the Treaty provisions, to see what might be retained through the GRB and what might not.
(Later posts will consider other elements of EU law.)
On Brexit, a substantial proportion of the Treaties’ provisions will become irrelevant to the UK, eg those provisions which set out the rules for the functioning of the EU, its institutions and its areas of competence. Clearly, those elements will not need to be transferred into UK law. Similarly, those provisions of the Treaties which govern the UK, as a Member State, in its dealings with other Member States and the EU institutions.
Other Treaty provisions give rights to individuals as EU citizens. The 1963 Van Gend & Loos judgment of the (now) EU Court of Justice established the principle of ‘direct effect’ of Treaty obligations, provided they are intended to confer rights on individuals, are precise, clear and unconditional, and do not entail any additional national or European measures (ie are directly applicable). In Defrenne in 1976 the Court held that the right to equal pay in what is now Article 157 TFEU was held to be:
‘…directly applicable and may thus give rise to individual rights which the courts must protect’.
In Barber in 1990 the EU Court ruled:
‘Article 119 [now 157] of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision’.
What will become of these rights post-Brexit?
The Government has indicated its intention (in the GRB White Paper) to preserve ‘rights in the EU treaties that can be relied on directly in court by an individual’ (The White Paper gives the example of equal pay under Article 157 of TFEU). But we do not think all such rights will be preserved in the GRB:
- first, some Treaty rights are already protected by UK primary legislation (eg the Equality Act 2010 gives protection from discrimination) – the GRB need not duplicate that protection;
- second, other individual rights, eg the right to free movement, will almost certainly not be preserved in the GRB because they are fundamentally inconsistent with the Government’s decision to pursue a ‘hard Brexit’ (as summarised in the Article 50 letter), eg free movement is incompatible both with leaving the Single Market and with the UK Government’s policy of seeking to limit immigration from the EU to the UK. The European Council’s negotiating guidelines (31 March 2017) were clear that (as far as the EU is concerned) the UK could not ‘cherry pick’ (eg keeping free trade but limiting free movement) in any future free trade agreement, and the EU draft position paper ‘Essential Principles on Citizens’ Rights’ (24 May 2017) states that the EU wants the UK to maintain free movement for all EU27 citizens, UK nationals and their family members, as well as rights which are in the process of being obtained. Until the terms of that withdrawal and the future trade agreement have been negotiated, it is difficult to say exactly which individual Treaty rights will be retained; and
- third, the Government has stated that the EU Charter of Fundamental Rights – which since the Treaty of Lisbon has the ‘same legal value’ as the EU Treaties – will not be converted into UK law’ by the GRB.
State aid and competition
EU law on state aid and competition has its basis in Treaty provisions. The Article 50 letter sets out that the Government wants a ‘Free Trade Agreement … of greater scope and ambition than any such agreement before it’, but is silent as to the extent to which the Government will accept and maintain existing EU rules on competition and state aid (although the Conservatives and Labour have both expressed their willingness to support exporters and industry – which may not be possible while subject to the EU’s state aid rules.). The former Chancellor, George Osborne, was reported as being somewhat critical of this omission at a panel discussion at the BCC:
‘… unless you have answered the question ‘are you going to allow, in a way that is not currently allowed, the government to step in and provide support for an industry that has failed, which is not allowed because of state aid rules’ – if you can’t answer that question you haven’t really gone into the meat of an industrial strategy … I’m not surprised all these questions haven’t been answered because they are very big questions and I’m not blaming the government because these are big issues which the British government has not had to think about for a long time.’
The European Council’s negotiating guidelines, however, are clear that any future trade deal will need to ‘ensure a level playing field in terms of competition and state aid’ and include ‘safeguards against fiscal, social or environmental dumping’, ie the EU wants to retain state aid, and to prevent the UK leading a ‘race to the bottom’ in Europe on tax, wages/labour laws and environmental standards. The type of trade deal reached will influence the continued application of these rules:
- a free trade deal equivalent to membership of the European Economic Area (EEA) (like Norway, Iceland and Liechtenstein), would require compliance as now;
- membership of EFTA (but not the EEA) would require compliance with state aid only in certain sectors (as Switzerland does for aviation); and
- most likely perhaps, given the Government’s stated position, is a separate free trade agreement with the EU similar to Canada’s Comprehensive Economic and Trade Agreement (CETA), may not contain any specific state aid provisions.
EU Common Policies
The position is also unclear as regards Treaty provisions which form the basis of EU Common Policies (notably, agricultural, fisheries and transport policies). On the one hand, it seems extremely unlikely (again, given the Government’s ‘hard Brexit’ position) that UK would seek to remain subject to such EU policies. However, on the other hand (as the GRB White Paper acknowledges):
‘… the current devolution settlements were agreed after the UK became a member of what is now the EU and reflect that context … In areas where the devolved administrations and legislatures have competence, such as agriculture, environment and some transport issues, the devolved administrations and legislatures are responsible for implementing the common policy frameworks set by the EU … When the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK, allowing these rules to be set here in the UK by democratically-elected representatives … [T] the Government intends to replicate the current frameworks provided by EU rules through UK legislation … [W]e will seek to minimise any changes to these frameworks’.
The Welsh government’s own White Paper (which strongly advocates continued membership of the Single Market) echoes this, stating that EU Frameworks provide an element of consistency across the UK internal market. It flags up the need for new UK-wide frameworks (which will in turn require wholly new inter-governmental machinery). Thus it may be that the GRB (or, more likely, separate legislation introduced later) seeks to create a UK Common Agricultural Policy (UKCAP?) to stand in place of the existing EU CAP.
‘Take my advice, Treat me nice’ (Elvis Presley, Treat Me Nice)