Wednesday, March 27, 2019

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 This might appear to suggest that if exit day is not redefined, the 1972 Act will be repealed on 29 March, thus placing the UK in breach of its obligation under the EU Treaties to give domestic effect EU law.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The European Communities Act 1972 is repealed on exit day.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.

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