Commencement Provisions and the European Union (Withdrawal) Act

Commencement provisions are fairly standard legal provisions are included in most act of parliament. They rarely get much attention but then the same could have been said for the finer points of parliamentary procedure...

A fairly interesting legal argument has arisen in the last few days concerning the commencement provision of the European Union (Withdrawal) Act. The argument goes that there is no need to adopt a statutory instrument in order to delay Brexit as section 1 hasn't been commenced yet. Mark Elliott from Public Law for Everyone puts it as follows:

A further apparent difficulty is that, as noted above, section 1 of the 2018 Act repeals the European Communities Act 1972 on exit day. This might appear to suggest that if exit day is not redefined, the 1972 Act will be repealed on 29 March, thus placing the UK in breach of its obligation under the EU Treaties to give domestic effect EU law. In fact, however, the Government has not yet brought section 1 of the 2018 Act into force. This means that even if exit day was not redefined, 29 March could come and go, and the 1972 Act would remain in place.

Section 1 reads as follows:

The European Communities Act 1972 is repealed on exit day.

But does it need to be commenced? Section 25 says that it does. Section 1 is not one of the provisions stated by section 25 to commence on enactment so subsection (4) would appear to apply. It say that:

The provisions of this Act, so far as they are not brought into force by subsections (1) to (3), come into force on such day as a Minister of the Crown may by regulations appoint; and different days may be appointed for different purposes.

Originally the Withdrawal Bill defined “exit day” as “such day as a Minister of the Crown may by regulations appoint”. This was consistent with section 25 and the requirement to commence section by ministerial regulations. However the definition of exit day was amended, on the government's proposal, to specify the original end time of the two year negotiation period. Section 20 provides that:

“exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));

Subsection (2) and (5) aren't relevant for present purposes. Subsections (3) and (4) set out a way of amending the above definition of exit day by statutory instrument. They provide that:

(3) Subsection (4) applies if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different from that specified in the definition of “exit day” in subsection (1). 

(4) A Minister of the Crown may by regulations—

(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and 

(b) amend subsection (2) in consequence of any such amendment.

That the end date for the UK's EU membership had now been changed is not in question. But whether the underpinning of EU law in UK law, the European Communities Act, will continue is another matter. Do we still need a statutory instrument before the end of the week to prevent the repeal of the European Communities Act on Friday?

On one view no. Section 1 has not effect until commenced. The problem with this argument goes to the heart of what a commencement provision is. A commencement provision is a provision specifying when another provision shall have effect. Commencement orders state the date from which certain provision take effect.

But section 1 already specifies when it is to come into force: 11pm on the 29 March 2019.

Commencement regulations have already been adopted for some provisions of the Act. For example regulation 3 of the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018 provides that:

The day appointed for the coming into force of the following provisions of the Act is the First Appointed Day—
...
(b) section 6(7) (interpretation of retained EU law);

(The First Appointed Day was 4 July 2018.)

But what would be the point in commencing section 1 on 12 April 2019 if the effect of doing so would be to give it retrospective effect back to exit day.

It is not unusual to find contradictions in legislation. In this case section 1 itself says that it come into force on 29 March. While section 25 says section 1 commences when a minister makes a commencement order. To say that section 1 need to be commenced by a minister is to suggest that the general rule contained in section 25 overrides the specific rule in section 1. The cannons of statutory interpretation say we should go the other way.

In Latin Lex specialis derogat legi generali. In English specific rules override general ones. Since section 1 already says when it enters into force, it exempts itself from the general rule that a commencement order is required.

Just to illustrate the point further. Regulation 4 of the 2018 Regulations provides that:

4.  The day appointed for the coming into force of—

(a) section 23(8) (consequential and transitional provision) insofar as it relates to the repeal of the European Union Act 2011 (to the extent not already commenced); and 

(b) accordingly Schedule 9 (additional repeals) insofar as it relates to the repeal of that Act (to the extent not already commenced),

is exit day.

Schedule 9 lists other primary legislation relating to EU membership which is to be repealed from exit day. Now it would be strange if all these acts were to be repealed while the European Communities Act itself were to remain in force, wouldn't it?

A draft statutory instrument to amend the definition of exit day in accordance with European Council Decision (EU) 2019/476 has been laid before the UK parliament but needs to be approved by both houses to enter into force.

Article 127 of the EEA Agreement

A lot of fairly hopeful Remainers continue to hope that Article 127 of the European Economic Area (EEA) Agreement could keep them in the single market after Brexit. The UK is a signatory to the EEA Agreement which extends the single market to the Iceland, Liechtenstein and Norway.

May be of interest @IanDunt @StevePeers @AllieRenison @GuitarMoog @EmporersNewC @davidallengreen @Sime0nStylites @Usherwood @JMPSimor @JolyonMaugham @_JeremyNicholls @WomaninHavana @jdportes @SarahLudford @CarolineLucas @lisaocarroll @GeorgePeretzQC @PaoloBrennan @riccsallustio66 pic.twitter.com/qrgJ6d2MqL

— Steve Lawrence (@SteveLawrence_) April 26, 2018

Article 127 provides that:

“Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.

Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”

The UK has not invoked this provision which leads many to think that the EEA Agreement would still apply to the UK after Brexit. Unfortunately this isn't how it works!

Context is everything. Article 2 of the Agreement provides that:

“The term ‘Contracting Parties’ means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States as they follow from the Treaty establishing the European Economic Community.”

Iceland, Liechtenstein and Norway clearly are contracting parties but regarding the EU (the legal successor to the European Community) and its member states, contracting parties could mean:

a.           the EU and the EU member states (acting together),

b.          the EU (on its own), or

c.           the EU member states.

Right, everybody clear now? Well no, but other aspects of the Agreement are less open to interpretation.

Article 2 contains the following further definition:

“the term ‘EFTA States’ means the Iceland, the Principality of Liechtenstein and the Kingdom of Norway;”

Article 28(1) provides that:

“Freedom of movement for workers shall be secured among EC Member States and EFTA States.”

Article 126(1) provides that:

“The Agreement shall apply to the territories to which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty, and to the territories of Iceland, the Principality of Liechtenstein and the Kingdom of Norway.”

Together these mean that:

First, even if the UK were to join the European Free Trade Association, it would not automatically become an EFTA State for the purposes of the EEA Agreement.

Second, when the EU treaties cease to apply to the UK, the EEA Agreement will also cease to apply. The UK will be neither a "EC Member State" or a "EFTA State" so the free movement of workers provisions will also cease to apply. A transitional deal between the EU and the UK won't help, the UK will need a separate transitional deal with the EFTA states.

In follows that that the phrase "Contracting Party" in Article 127 doesn't refer to a single EU member state, but to the EU in its entirety. The EU could withdraw from the EEA as could Iceland, Liechtenstein and Norway, but an individual EU member state couldn't withdraw in its own right.

There might be an argument to say that the UK remains a contracting party in the Vienna Convention sense, as it signed and ratified the EEA Agreement, but it would be a hollow position without the application of any substantive provisions.

The EEA Agreement is not unique. Pretty much all the agreements the EU signs contain territorial provisions similar to Article 126 of the EEA Agreement. Trade deals with Canada and Japan will cease to apply to the UK from Brexit day unless those countries agree to continue to apply them to the UK after Brexit day.

A questionable charge

(An occasional blog by an occasional blogger.)

Twitter is alive with the assertion that Julian Assange is wanted by Sweden for "questioning" and has not been "charged". In addition we are told that Assange offered to be questioned in London and that Sweden's rejected of this offer is "suspicious".

It is not unusual in media coverage of extradition cases for differences between common law and civil law legal systems to be forgotten. In reality Julian Assange is not wanted for questioning, certainly not in the way as this expression is used in common law legal procedure, ie a police interview.

European Arrest Warrants may only be issued for the purposed of conducting a criminal prosecution not merely an investigation. In Sweden in order to charge an individual with a criminal offence, the investigated person must be brought before a magistrate to be formally interrogated. The person must be present. The evidence is put to him and he is given a opportunity to reply. This is not a police interview. The investigated person has the right to be legally represented. It is only after this procedure takes place that formal charges can be preferred. If charges are preferred a trial follows shortly afterwards.

In Ireland this element of Swedish criminal procedure was described by the President of the High Court in Minister for Justice v. Ollsen as:

"The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences." [2008] IEHC 37, page 17. (The decision was upheld on appeal.)

Almost needless to say, the English courts examined Assange's contention that he was being sought for questioning and not prosecution, and rejected it. In the High Court the judges ruled that:

"Although it is clear a decision has not been taken to charge him, that is because, under Swedish procedure, that decision is taken at a late stage with the trial following quickly thereafter. In England and Wales, a decision to charge is taken at a very early stage; there can be no doubt that if what Mr Assange had done had been done in England and Wales, he would have been charged and thus criminal proceedings would have been commenced. If the commencement of criminal proceedings were to be viewed as dependent on whether a person had been charged, it would be to look at Swedish procedure through the narrowest of common law eyes. Looking at it through cosmopolitan eyes on this basis, criminal proceedings have commenced against Mr Assange." [2011] EWHC 2849 (Admin), para 153.

Thus Assange's offer to allow himself to be interviewed by the Swedish prosecutors in London was disingenuous. The case against him has progressed to an advanced stage and his presence in Sweden is required. This is after all why Sweden requested his surrender.

Ryanair may just be right!

EU regulations rarely make for either good reading. And for the fairly large number of people whose holidays over the last week were somewhat longer than expected, recital 14 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 may make for rather depressing reading:

"As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier."

The media may be full of talk of Ryanair's supposed refusal to respect EU rules on airline passengers, but if volcanic ash causing a flight blackout in Europe doesn't count as extraordinary circumstances, it's difficult to imagine what would!