Thread by @AdamJTucker

A thread with some thoughts on Article 4 of the Draft Withdrawal Agreement.
Art 4 is (amongst other things) a Supremacy Clause.
It has implications for parliamentary sovereignty. And parliamentary sovereignty has implications for it. (1/)

Art 4 requires Parliament to pass a provision binding future Parliaments. This new provision will be in some ways narrower and in others broader than s2(4) of the EC Act 1972. Some of this leads to constitutional novelty. It'll likely be OK, but is unlikely to be plain sailing.

(A quick confession: this might be a bit sketchy. I've read a lot of the document, but I'm claiming no expertise on the totality of the agreement!). Anyway, here goes...
(3/)

In Art 4, the UK government commit to passing primary legislation which provides a power to disapply some domestic law which is incompatible with Union Law or with the provisions of the Withdrawal Agreement itself. (4/)

This is not explicit, but it will stretch to the disapplication of primary legislation. Art 4 demands "the same legal effects in the Member States", so Union law which overrides primary domestic legislation now (see Factortame) must also get that status under the new clause (5/)

And my reading of Art 4 is that this extends so that the the Withdrawal Agreement itself must be protected from legislative infringement. It's a shame it doesn't say so explicitly. (6/n)

So there will be new primary legislation to give effect to Art 4. Think of the new provision this will yield as a successor to s2(4) of the European Communities Act 1972. But what must it say? And how do we understand Parliament's power to craft the necessary clause? (7/)

FIRST - what must it say?
(8/)

(a) in some senses it will have a narrower scope than s2(4) - it must catch not the totality of Union Law but only "the provisions of Union Law made applicable by this agreement". Art 127 in combination with the rest of the withdrawal agreement leave us with a small gap. (9/)

(..a) So In Art 4 the gvt have promised something with a slightly more modest scope than s2(4).

(10/)

(b) but in another sense, it will be broader than s2(4). It makes supreme not JUST Union Law, but also the withdrawal agreement itself. This will entail adding new constraints to Parliament's legislative power. (11/)

(c) the nature of the Art 4 promise is different to s2(4). s2(4) was indefinite but revocable - it would never expire, but it could be undone, by repeal/leaving the EU (as in the Withdrawal Act). (12/)

(..c) Art 4 is the other way round to s2(4). It is time limited but irrevocable i.e. it will expire in 2020 (or 20XX if an extension to the transition is agreed under Art 132) but it is not intended to be undoable in the meantime. (13/)

(..c) So Art 4 requires Parliament to have less control over its own sovereignty than s2(4), albeit for a limited period.
(14/)

(d) finally, Art 4 is broader than s2(4) in institutional terms. It specifies that both judicial AND administrative authorities must have the power to disapply domestic law. (15/)

(..d) Factortame established a power for COURTS to disapply. It conceded no such power to administrative authorities. Under Art 4, administrative authorities will gain a statutory power to disapply primary legislation for themselves. (16/)

Primary legislation is needed here not simply because Art 4 specifies that method. It is needed because primary legislation is the only way to deliver the substance of what Art 4 demands. (17/)

Even without the 4 differences above, the continued supremacy of Union Law would still have needed primary legislation: bare minimum, the repeal of s2(4) in the Withdrawal Act would have needed undoing. (18/)

But these differences (and more, as well as the political context) mean simple restoration of s2(4) will not suffice.

A clause binding Parliament - limiting its power to pass certain future legislation - needs to be crafted which captures the promise made in Art 4.
(19/)

So, SECONDLY - Can Parliament do all this? Does it have the power to pass the clause which Art 4 demands?

I think so, but it's not clear-cut...
(20/)

Parliament obviously has *some* power to bind its successors. It did so successfully in s2(4). But why/how we account for that has always remained controversial. And whether whatever power it used to do so also extends to this new promise will also be controversial.
(21/)

The differences between what s2(4) provided, and what Art 4 promises are one element of the uncertainty. I think they probably play out as follows. Sometimes they interrelate (esp: the expiry date might make us more relaxed wherever we have doubts) but let's forget that for now:

Difference (a), the restriction to only some Union law, i.e. the removal of the courts' power to disapply domestic law based on Union law which no longer applies in the UK, is unproblematic. Possibly obviously so...
(23/)

Difference (b) - the expansion to cover also the withdrawal agreement itself - is *probably* unproblematic. Accounts of the success of s2(4) will usually extend to a power add this agreement to the list of instruments accorded supremacy. But there may be some doubters. (24/)

Difference (c) - apparent irrevocability - might be significant. It's a common thread to many (all?) discussions of s2(4) / Factortame that the repealability of s2(4) - i.e. the fact we can leave the EU and unbind Parliament - is part of its constitutional acceptability (25/)

For many (FWIW including me) this is in fact central to its constitutional validity. Art 4 will lack that kind of acceptability. So it will need its own constitutional justification. (26/)

This is tempered by the fact it's time-limited - the constraint applies only until it expires, that expiry is (relatively) imminent, even in the event of an extension. It is though, a constitutional novelty. (27/)

Whether or not Parliament succeeds here (which I think it would) we'll learn something new about its power to bind itself. Art 4 will yield a different kind of constraint to the one we are familiar with in s2(4).
(28/)

Finally (d) - the extension of the power to disapply to "administrative" bodies" - strikes me as as more problematic. It goes beyond Factortame, so is another constitutional novelty. (29/)

There is a rule of law risk inherent in empowering the executive to disapply the law like this. Our courts have been known to counter this problem robustly in other circumstances. They could well be reluctant to give effect to such a provision. They might be right. (30/)

This worry is tempered as well though. Firstly, the reference to administrative authorities might just reflect a difference in political/legal culture between the parties. In domestic terms, it might really just mean courts. (31/)

Or maybe the only body capable of "disapplying" legal provisions is one with the converse power to "apply" them in the first place. Basically courts anyway. Still there's either a problem or an unhelpful layer of complexity here. So (d) presents a constitutional challenge
32/

That's all. For today anyway.

Thanks if anyone stayed with me this long. Have a nice weekend!
(33/33 and ENDS)