Thread: A v. important Brexit consultation on Regulations to widen the power to depart from retained EU caselaw is being done in an unrealistic 6 week timescale over July and August: see bit.ly/2WpgfLb. The consultation raises some huge public law/ constitutional issues.
1. The power under s.6(5A) EUWA 2018 as inserted by EUWaGA was hugely controversial and was one of the areas that attracted most debate. To hurry the consultation through in 6 weeks at the worst time of the year (July is legal chaos, August dead) is most unsatisfactory.
2. The proposal fails to recognise a key difference: did the facts arise pre or post IP completion day. If the former, departure from retained EU law is akin to retrospection, and has profound A1P1 (Pressos Naviera) consequences. Not a power to hand out willy nilly.
3. That will lead to potential tension with and even conflict between the Regulations, the power they confer and s.6 HRA. Not a power most Courts would want. It looks like ducking the required politics.
4. The solution is surely either (a) proper s.8 delegated legislation addressing the deficiencies rather than this form of open-textured power; or (b) changes in policy (e.g. Sturgeon) decided upon by legislators with proper powers to change the law, not ad hoc judicial change?
5. How does this power - which is huge, burdensome and politically fraught - sit with the supposed hostility of the Govt to "judicial activism" and displaced political problem solving by JR? It looks like more of the usual "park hard stuff with Courts and complain about results"
6. Option 1 does not really work in any event. Surely it should extend to any Court which, by dint of the subject matter, sits immediately below the Supreme Court - e.g. Divisional Court in a criminal cause or matter?
7. Option 2 is a recipe for chaos. Everyone dissatisfied with any CJEU ruling will have a go, wherever they can, whether it delayed passenger boarding (airlines), social security (Govt), employment rights, TUPE (employers) etc etc. The solution again is legislation.
8. If widened the powers need to take proper and informed account of the fact that EU law will continue to run unvarnished in some areas: e.g. large amounts of goods etc law via the NI Protocol; large amounts of persons/establishment law via the Withdrawal Agreement.
9. It makes no sense for the CJEU ruling to be binding e.g. in relation to an internal market Directive given effect in NI via the Protocol but not in the same Directive retained in the rest of the UK. Ditto Withdrawal Agreement for those with retained/grandfathered rights.
10. Given all these problems a detailed consultation on the text of the Regulations will be an essential next step. I bet it will be dispensed with & the SI in question will be passed without further discussion, probably via the urgency procedure to stop its debate in Parliament
11. It is vital that legal practitioners, academics and specialist bar associations, solicitor groups etc respond to this consultation given its importance. END
3. That will lead to potential tension with and even conflict between the Regulations, the power they confer and s.6 HRA. Not a power most Courts would want. It looks like ducking the required politics.
4. The solution is surely either (a) proper s.8 delegated legislation addressing the deficiencies rather than this form of open-textured power; or (b) changes in policy (e.g. Sturgeon) decided upon by legislators with proper powers to change the law, not ad hoc judicial change?
5. How does this power - which is huge, burdensome and politically fraught - sit with the supposed hostility of the Govt to "judicial activism" and displaced political problem solving by JR? It looks like more of the usual "park hard stuff with Courts and complain about results"
6. Option 1 does not really work in any event. Surely it should extend to any Court which, by dint of the subject matter, sits immediately below the Supreme Court - e.g. Divisional Court in a criminal cause or matter?
7. Option 2 is a recipe for chaos. Everyone dissatisfied with any CJEU ruling will have a go, wherever they can, whether it delayed passenger boarding (airlines), social security (Govt), employment rights, TUPE (employers) etc etc. The solution again is legislation.
8. If widened the powers need to take proper and informed account of the fact that EU law will continue to run unvarnished in some areas: e.g. large amounts of goods etc law via the NI Protocol; large amounts of persons/establishment law via the Withdrawal Agreement.
9. It makes no sense for the CJEU ruling to be binding e.g. in relation to an internal market Directive given effect in NI via the Protocol but not in the same Directive retained in the rest of the UK. Ditto Withdrawal Agreement for those with retained/grandfathered rights.
10. Given all these problems a detailed consultation on the text of the Regulations will be an essential next step. I bet it will be dispensed with & the SI in question will be passed without further discussion, probably via the urgency procedure to stop its debate in Parliament
11. It is vital that legal practitioners, academics and specialist bar associations, solicitor groups etc respond to this consultation given its importance. END
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