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Introduction

The importance and role of the European Economic Area (EEA) Agreement has often been overlooked. Yet, as the UK exits the European Union, the question of the UK’s desired relationship with not only the EU27 but also the EEA30 has never been more live. In a previous blog post I argued that the UK has not notified its intention to leave the EEA as required. This post examines the domestic law implications of this conclusion.

On 20th December 2018, the day after Parliament rose, the Government published an ‘EEA EFTA Separation Agreement’. This was accompanied by an ‘EEA EFTA Explainer’. To date, the EEA EFTA Separation Agreement has been ‘agreed,’ but not ‘signed’. Subsequently, on 8th February 2019, the Government published another draft agreement, the ‘EEA EFTA No Deal Citizens’ Rights Agreement’.

Turning to the intended ratification of the EEA EFTA Separation Agreement, this post addresses the domestic process for entering to and ratifying treaties. It considers that there is scarcely sufficient time for the application of Constitutional Reform and Governance Act 2010 (‘CRAG’) to ratify the EEA EFTA Separation Agreement.

European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 (‘EU(W)A 2018’) addresses the EEA Agreement but in rather an obscure manner. While the UK courts are very likely to be reluctant to look into Parliament’s intentions, it seems curious that full primary legislation is required to exit from the EU, but that departure from a separate legal order can be effected by way of Schedule 8 — ‘Consequential, transitional, transitory and saving provision Part 2 — Specific consequential provision’ of the EU(WA) 2018.

The House of Commons Library discusses the domestic basis for withdrawal from the EEA in rather a sceptical fashion in its briefing paper on the European Economic Area (Number 8129, 21 December 2018 at [9.3]). While the EEA Agreement is mentioned at a number of points in the EU(W)A 2018, it is only c. 16 Sch. 8 paras. 24 to 28, which amend the European Economic Area Act 1993. Paragraphs 23 and 24 of Schedule 8, Part 2 EU(W)A 2018 provide:

‘23 The European Economic Area Act 1993 is amended as follows.

24 Omit section 1 (EEA agreement to be an EU Treaty).’

Section 1 of the European Economic Area Act 1993 provides:

‘In section 1(2) of the 1972 Act, in the list in the definition of “the Treaties” and “the Community Treaties”, there shall be added at the end the words “and 

(m) the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 together with the Protocol adjusting that Agreement signed at Brussels on 17th March 1993’.

The action of para.24 of Schedule 8 Part 2 EU(W)A 2018 in omitting the classification of the EEA Agreement from the definitions provision (s.1(2)) of the European Communities Act 1972), which is a classification within domestic law alone, may perhaps be sufficient for the purposes of domestic revocation. Yet, the contrast between para.24 and the European Union (Notification of Withdrawal) Act 2017 could not be more stark. Moreover, even if para.24 is sufficient for the purposes of domestic revocation of the incorporated EEA Agreement, it does so only at the domestic level: the UK remains a Contracting Party to the EEA Agreement at the European and international law level.

Ratification, the Constitutional Reform and Governance Act 2010, and Parliamentary procedure

In brief, in the UK, the Government negotiates, signs and ratifies treaties under the Royal Prerogative, with only a limited role for Parliament. The following is the general procedure; there are of course exclusions and exceptions. Once it has been negotiated, the Government signs the finalised treaty. As the Foreign and Commonwealth Office’s Treaties and Memoranda of Understanding (MOUs) Guidance on Practice and Procedures p.4 notes ‘The UK, however, does not sign a treaty unless it has a reasonably firm intention of ratifying.’ Parliament makes any necessary domestic legislative changes for the treaty to apply. The Government lays the signed treaty before Parliament, where it is subject to CRAG. Once, the treaty has passed the necessary period in Parliament, and there are no outstanding resolutions it, the Government may ratify the treaty.

In the present situation, the EEA EFTA Separation Agreement will need to be incorporated into domestic law in order to have effect in UK courts, but it is intended to ‘only apply if the Withdrawal Agreement is concluded between the EU and the UK.’

Lord Ahmad of Wimbledon, of the Foreign and Commonwealth Office, provided as an answer to a written parliamentary question (HL12669) that the EEA EFTA Separation Agreement ‘will be subject to the provisions of the Constitutional Reform and Governance Act 2010’. The same statement is made at para. 1.2(5) of the EEA EFTA Explainer. In greater detail, on 20th December 2018, Lord Callanan, Minister of State for Exiting the European Union (HLWS1187), quoted the Secretary of State for Exiting the European Union, ‘I will be depositing these agreements and explainers today in the Libraries of both Houses. The Government intends to sign both agreements before exit day and legislate for them through the EU (Withdrawal Agreement) Bill. Both agreements are subject to ratification processes in each of the relevant states, including the provisions of the Constitutional Reform and Governance Act (CRaG) 2010 in the UK.’

To date, the EEA EFTA Separation Agreement has been ‘agreed,’ but not ‘signed’. The Foreign and Commonwealth Office’s Treaties and Memoranda of Understanding (MOUs) Guidance on Practice and Procedures p.2 states that ‘Original treaty documents should always be sent to Treaty Section [Legal Directorate, FCO], which arranges for their publication as command papers and laying before Parliament.’ Consequently, the EEA EFTA Separation is yet to be laid before Parliament.

CRAG requires that the EEA EFTA Separation Agreement must be laid before both Houses in the form of a command paper either in the Miscellaneous Series or, less likely, the European Union Series for 21 sitting days defined as days upon which both Houses sit (s.20(9) CRAG). During this period the treaty may not be ratified. Both Houses can resolve against ratification: the Lords once only, and the Commons repeatedly (triggering a new 21-sitting-day period each time).

The calculation of sitting days is difficult. The Leader of the House of Commons, for instance, may determine that the House will sit on a Friday that had previously looked like a non-sitting Friday. At present, it appears as though the Government will have to lay treaties by 22nd February before Parliament if it will honour the full 21-day period and for those treaties to be ratified before 29th March. A weekly list of treaties subject to CRAG – with the last date for objections – is available here. It must be noted, however, that s.22 CRAG allows the usual 21-sitting-day period to be curtailed or avoided in ‘exceptional cases’ so long as the treaty is laid before Parliament at some point and the circumstances explained by a Minister. Interestingly, in a letter of 13th February 2019 to the Chair of the House of Commons Procedure Committee, the Secretary of State for Exiting the European Union, the Rt. Hon. Steve Barclay MP, wrote, ‘In respect of international agreements which are concluded to ensure continuity to existing EU agreements following the UK’s withdrawal from the EU, the Government’s intention is to lay treaties subject to ratification under the 2010 Act [CRAG] in the normal way, but cannot exclude the possibility of using section 22 if an exceptional case should arise which justified its use.’

Both the House of Commons and the House of Lords intend to scrutinise the forthcoming Brexit-related treaties. The Chair of the House of Commons Procedure Committee, Charles Walker OBE MP set out the Commons’ intentions in a letter of 6th February 2019. In the House of Lords, the Procedure Committee decided on 14th January 2019 that the European Union Committee should, until the end of the 2017-19 session of Parliament, be responsible for scrutinising Brexit-related treaties or international agreements. To that end, ‘the EU Committee will do “due diligence” on the legal and policy implications of all Brexit-related treaties and international agreements published between now and the end of the session. It will report on all these agreements, to help Peers in identifying those of particular interest, so that they can, where appropriate, table resolutions or motions to debate them.’ The European Union Committee’s intention is to report around 10-14 days before the deadline is reached in order to provide time motions for debate is to be tabled. A helpful flowchart of the scrutiny process may be found here. The treaties scrutinised and ‘sifted’ may be found here. The European Union Committee’s reports, evidence, and correspondence with Ministers may be found here.

Article 71(2) of the EEA EFTA Separation Agreement requires (as regards the UK) that the UK deposit its instrument of ratification, acceptance or approval with the Norwegian Government as Depositary by 30th March 2019. The consequence of the minimal time available for ratification is that were either House minded to resolve against ratification the draft treaty will almost certainly require amendment. Importantly, the ‘continuity’ effects sought would become redundant were a temporal gap to be introduced. However, as time goes by it becomes increasingly likely that the Government may seek to rely on the ‘exceptional cases’ exception in s.22 CRAG. The UK Government may also seek to engage provisional application of the EEA EFTA Separation Agreement, potentially on the basis Article 25(1)(b) of the Vienna Convention so long as the ‘negotiating States have in some other manner so agreed’. However, whether the UK Government may do this in order to avoid s.20 CRAG is open to debate.

As an alternative arrangement, the EEA EFTA No Deal Citizens’ Rights Agreement has been prepared. This alterative treaty will be addressed in a separate post.

Conclusions

The UK Government’s policy of creative ambiguity towards withdrawal from the EEA Agreement ended when it ‘agreed’ the EEA EFTA Separation Agreement. This blog post contends that arguably the UK has not taken the requisite appropriate action at the domestic level to withdraw from the EEA. Finally, it is challenging to believe that the UK will be able to deposit its instrument of ratification of the EEA EFTA Separation Agreement by 30th March 2019 unless the emergency power in s.22 CRAG is used.

This blog post is based on part of a forthcoming article by the author. The author would like to thank in particular Arabella Lang, Parliament and Treaties Hub, House of Commons, and Dr. Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law, for their invaluable comments and knowledge. All errors remain the author’s own.

Michael-James Clifton, Chef de Cabinet, Chambers of Judge Bernd Hammermann, EFTA Court.  All views expressed are entirely personal.

(Suggested citation: MJ Clifton, ‘Parliament’s Role in Withdrawing from the EEA, and Difficulties in Ratifying the EEA EFTA Separation Agreement’, U.K. Const. L. Blog (21st Feb. 2019) (available at https://ukconstitutionallaw.org/))

Court of JusticeIntroduction

The importance and role of the European Economic Area (EEA) Agreement has often been overlooked. Yet, as the UK exits the European Union, the question of the UK’s desired relationship with not only the EU27 but also the EEA30 has never been more live.

This blog post contends that the UK has not given the required notice of withdrawal from the EEA Agreement, and that the Government’s actions undermine the UK’s current and future negotiating positions with the EU27 and EEA30.

On 20th December 2018, the day after Parliament rose, the Government published an ‘EEA EFTA Separation Agreement’. This was accompanied by an ‘EEA EFTA Explainer‘. To date, the EEA EFTA (European Free Trade Association) Separation Agreement has been ‘agreed,’ but not ‘signed’. Subsequently, on 8th February 2019, the Government published another draft agreement, the ‘EEA EFTA No Deal Citizens’ Rights Agreement’. This second draft treaty will be addressed in a separate article.

The EEA Agreement: a mixed agreement

The EEA Agreement was signed in Oporto on 2 May 1992. The original signatories as ‘Contracting Parties’ were the then European Economic Community, the then European Coal and Steel Community, the then twelve EEC Member States including the UK, and the then seven EFTA States: Austria, Finland, Iceland, Liechtenstein, Norway, Sweden, and Switzerland. In short, the EEA Agreement extends the Single Market to the EEA/EFTA States. The EEA Agreement is based on two pillars of membership: EU and EFTA, each having their own respective mechanisms for supervision, in the form of the European Commission and EFTA Surveillance Authority, and courts, the Court of Justice of the European Union and the EFTA Court. As the EFTA Court held in E-9/97 Sveinbjörnsdóttir [1998] EFTA Ct. Rep. 95 para. 59, ‘[T]he EEA Agreement is an international treaty sui generis which contains a distinct legal order of its own.’ There are thus two legal orders that form the basis of the EEA Agreement: EU and EEA law. Within the EU, the provisions of the EEA Agreement are able to produce direct effect (see in particular, Case T-115/94 Opel Austria v Council 1997 ECR II-00039 para. 102). The EEA Agreement was incorporated into UK domestic law by the European Economic Area Act 1993.

The EEA Agreement is a mixed agreement as a matter of EU law. As Article 2(c) EEA makes explicit the UK is a Contracting Party to the EEA Agreement in its own right and also separately bound by the EEA Agreement as an EU Member State. This point is addressed also at some length by Yuliya Kaspiarovich and Nicolas Levrat in their piece ‘The UK and EU mixed agreements after Brexit: the case of the EEA’ 24 October 2018. The consequences of mixity were expressed by Advocate General Sharpston in her Opinion concerning Opinion procedure 2/15 concerning the EU’s free trade agreement with Singapore at points 76 and 77, in particular that ‘each Member State remains free under international law to terminate that agreement in accordance with whatever is the appropriate termination procedure under the agreement. Its participation in the agreement is, after all, as a sovereign State Party, not as a mere appendage of the European Union’ and that ‘[t]he ability to act independently as an actor under international law reflects the continuing international competence of the Member State; the fact that the Member State remains partially bound by the agreement even if, acting under international law, it terminates it reflects not international law but EU law.’

It follows that a country withdrawing from the EU needs also to withdraw, separately, in its own right from a mixed agreement, in order to cease to be one of the contracting parties.

How to leave

As is almost ubiquitously now known a Member State may withdraw from the EU by way of Article 50 TEU. What is much less well known is that the EEA Agreement contains its own ‘exit’ provision: Article 127 EEA, which provides:

 ‘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.’ (emphasis added)

On the basis of Advocate General Sharpston’s reasoning in Opinion 2/15, above, as a mixed agreement should the UK wish to leave the EEA Agreement in addition to leaving the EU, it must ‘give at least twelve months’ notice in writing to the other Contracting Parties pursuant to Article 127 EEA.

What the UK has done

On 3rd February 2017, the Divisional Court in Yalland and Wilding v Secretary of State, [2017] EWHC 630 (Admin) dismissed as premature the ‘Article 127 EEA’ litigation which followed on the coattails of Miller (see in particular [48] and [49]).

The following month, the Prime Minister’s letter to the President of the European Council Donald Tusk  of 29 March 2017 gave notification of the UK’s intention to leave the EU and the European Atomic Energy Community pursuant to Article 50(2) TEU and as applied by Article 106a of the Treaty Establishing the European Atomic Energy Community.

The Prime Minister did not make mention of any desire of the UK to leave the European Economic Area. The letter could have given notice that the UK intended to withdraw from the EEA Agreement in parallel to the EU, thus exceeding the minimum twelve-month notification required by Article 127 EEA, paragraph 1. It would also have been straightforward to copy the letter to the other three non-EU Contracting Parties to the EEA, Iceland, Liechtenstein and Norway. Nevertheless, the UK chose not to act. Indeed, to-date the UK has made no written notification of its intention to withdraw from the EEA Agreement.

As noted above, the EEA Agreement has created a distinct sui generis legal system apart from international law. EEA law is, as a rule, interpreted in a teleological, or purposive manner by the EFTA Court. Rather than use Article 127 EEA to notify an intention to withdraw from the EEA, the UK Government appears to imply and rely upon a constructive interpretation of Article 126 EEA. Article 126 EEA concerns the territorial scope of the EEA Agreement. Article 126(1) EEA provides:

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.’

The UK Government’s argument effectively runs that once the UK has left the EU, the ‘territories to which the [EU treaties are] applied’ will shrink to exclude the UK. As a result, as the Lords Whip, Baroness Goldie, told the House of Lords on 25 April 2018 ‘Article 127 does not need to be triggered for the agreement to cease to have effect.’ That is, with respect, accurate only as far as it goes. As the author has previously written ‘as a standalone and independent treaty it is reasonable that the UK must make an Article 127 EEA notification or be in breach of its international obligations.’ Were the UK to do nothing in respect of its membership of the EEA, after withdrawing from the EU the UK would neither be subject to the EU nor EFTA pillars of the Agreement. This would be a breach of the UK’s obligations. Therefore, the EEA Agreement’s effects vis-à-vis the UK would enter into abeyance as it would be subject to neither the EU or EFTA supervisory and judicial mechanisms (i.e. the European Commission, and ECJ, and the EFTA Surveillance Authority and EFTA Court).

Future relationship with ‘Europe’ at large

Irrespective of whether the UK-EU Withdrawal Agreement is ratified by 29th March 2019, or whether there is an extension to the Article 50 TEU period (for which a suspension of the ‘ticking clock’ only would appear to provide the time for dispassionate negotiation, even if there were certain consequences for the UK as an EU Member State), the question of the UK’s relationship with ‘Europe’ is most unclear. Yet, some sort of positive relationship is needed.

EEA/EFTA membership is an achievable possibility in the draft UK-EU political declaration. As EU Chief Negotiator Michel Barnier noted on 29th November 2017, ‘Only the combination of the internal market and the customs union allows frictionless trade between us.‘ As this author has previously put forward, the Prime Minister’s desired ‘deep and special partnership agreement’ with the EU could perhaps best be achieved based on an updated version of the EEA Agreement. The Common Market 2.0 proposal published in January 2019 by Lucy Powell MP and Robert Halfon MP on behalf of the cross-party Norway Plus Group is entirely contingent upon the UK becoming an EEA/EFTA State. In the House of Lords, Lord Lea has called for the UK to stay part of an ‘evolving EEA family of nations.’ Given the closeness and content of such relationships while they would require a withdrawal agreement (pursuant to Article 50(2) TEU), such a withdrawal agreement’s content and design would look quite different from the UK-EU Withdrawal Agreement, and not merely in terms of the content of the Political Declaration.

Views in favour of an EEA/EFTA-based Brexit have been put forward by many including Mr Barnier, and the former President of the EFTA Court, Professor Carl Baudenbacher (here and here). Iceland’s Foreign Minister Guðlaugur Þór Þórðarson was interviewed on Newsnight on 27th November 2018 when he stated, ‘We would be very positive towards the idea of the UK joining EFTA or the EEA- you are the ones that started the organisation.’ The following day, the Norwegian Prime Minister Erna Solberg echoed those positive statements ((original interview in Norwegian), which was picked up by Reuters).

Unless, there is to be a cold, hard, snap in UK-EU relations the imperfect EEA Agreement is a sensible place from which to evolve relations; a scenario which Eurosceptics long-favoured as both Bloomberg and Juliet Samuel in the Telegraph have recently recalled.  In such circumstances, the creative ambiguity created by failing to make an Article 127 EEA notification may be understood. Yet, the EEA EFTA Separation Agreement undermines the UK’s future negotiating position. It is difficult to perceive the rationale of withdrawing from the EEA Agreement, if membership thereof forms part of the UK’s future relationship with ‘Europe’ at large.

Conclusions

The nature of the EEA Agreement as a mixed agreement, as a matter of EU law, has consequences for an EU Member State seeking to withdraw from it. On the construction of both the EEA Agreement itself, and in particular Article 127 thereof, and the means by which it was ratified and incorporated by way of the EEA Agreement Act 1993, the UK needs to take appropriate action at both the domestic and international levels in order to withdraw from the EEA Agreement.

The consequences of the UK being in breach of its obligations vis-à-vis the EEA Agreement, and the treaty being put into abeyance as far as it concerns the UK, are significant. Nevertheless, if the UK seeks to have a treaty-based relationship, whether it is closer to Common Market 2.0 or a ‘deep and special partnership agreement’, with the thirty other contracting states to the EEA Agreement, it is surely more sensible to remain a signatory to the EEA but in breach of the EEA, than to withdraw and accede once more.

This blog post is based on part of a forthcoming article by the author. The author would like to thank in particular Arabella Lang, Parliament and Treaties Hub, House of Commons, and Dr. Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law, for their invaluable comments and knowledge. All errors remain the author’s own.

Michael-James Clifton, Chef de Cabinet, Chambers of Judge Bernd Hammermann, EFTA Court.  All views expressed are entirely personal.

(Suggested citation: MJ Clifton, ‘The UK’s Creative Ambiguity towards the EEA: Immediate and Future Relationship Problems’, U.K. Const. L. Blog (20th Feb. 2019) (available at https://ukconstitutionallaw.org/))

Brexit is scheduled to Brexit Clockbecome effective at the end of 29 March 2019 and will take place either with a Withdrawal Agreement or without one having been entered into between the UK and the EU-27. At this point in time it is possible that the Article 50 TEU notice is withdrawn by the UK Government. Whether the Brexit Date 29 March 2019 is postponed upon application of the UK and agreed with the unanimous consent of the other 27 Member States is still undecided.

Upon Brexit becoming effective the UK will cease to be party to the existing Free Trade Agreements and Association Agreements the EU currently has entered into with a multitude of countries and regional free trade zones around the world in the last decades. The UK is currently striving to enter into its own binding agreements with such other countries to come into force on 30 March 2019 but so far only continuity agreements with Switzerland and a number of smaller UK trading partners have been inked.

There is no difference between a “Deal” and a “No Deal” Scenario in relation to the termination of the existing Free Trade Agreement and Association Agreements on 29 March 2019. Even if the UK House of Commons should change its mind and ratify the Withdrawal Agreement, and even if the Transition Period until 31 December 2020 contemplated in the Withdrawal Agreement under Articles 126 and 127 thereof would then come into force, such Transition Period only applies in the relationship between the UK and the EU-27, but does not bind any other country around the world without their express consent.

Article 129 of the Withdrawal Agreement provides that the UK shall be bound by the obligations stemming from the international agreements concluded by the EU, but binds only the UK. In the context of Article 129 it is contemplated that the EU will notify the other parties to such international agreements that during the Transition Period the UK is to be treated as a Member State for the purposes of such agreements, but that is not binding on such other countries.

Shipping goods from the UK to destinations around the world can take several weeks and if such goods arrive after 29 March 2019 in countries with which the EU has Free Trade Agreements (for example Japan, South Korea, Canada, Mexico, Columbia, Ecuador, Peru, South Africa) then the import and customs regime will have changed and the import of such goods will be handled under a different set of rules. That applies both in a Deal as well as in a No Deal Scenario.

Shipping goods from Japan, South Korea, Canada, Mexico, Columbia, Ecuador, Peru, South Africa or other exporting countries to the UK can of course also take several weeks and if such goods arrive in the UK after 29 March 2019, then the import and customs regime will have changed and the import of such goods will be handled under a different set of rules. That applies, subject to any internal legislation in the UK, in the “No Deal Scenario”. In case of the “Deal Scenario” the UK will be obliged under Article 129 of the Withdrawal Agreement to apply those rules which currently exist under Free Trade Agreements and Association Agreement entered into in the past by the EU even if the relevant exporting other country does not apply them any longer after 29 March 2019 to goods shipped from the UK to such other country.

It is completely uncertain whether individual exporters exporting to the UK will have direct recourse under Article 129 of the Withdrawal Agreement against the UK or whether Article 129 is a simple international obligation owed by the UK to the EU only, without having direct effect in favour of exporters exporting to the UK.

Council on the Common Fisheries PolicyA key public law discussion in recent months concerns the vast number of statutory instruments (SIs) government is using to implement Brexit. Initially, it was said by government that c.800-1,000 SIs were required. That estimate has now been revised down to c.600 (while the estimated number of SIs has decreased the size of individual SIs has also increased). This aspect of the Brexit process is worthy of study for multiple reasons, perhaps most notably because of the level of democratic scrutiny that will be (realistically) provided. In this post, we introduce one aspect of Brexit SIs that, we argue, is worthy of close attention by public lawyers: the deletion of administrative functions.

Assume, delete, or coordinate?

In the UK, we are governed by a complex set of structures which exist across a range of layers. Government exists on the local, devolved, national, supranational level etc. Administrative functions—in the forms of powers and duties—exist throughout these levels. In respect of these functions, Brexit represents a process of redistributing powers and duties from the EU to domestic administrative bodies (or that is at least what is expected).

The key choice for government vis-à-vis any administrative function presently held by the EU is effectively three-fold: delete the function; assume the function on the national level (either on behalf of the UK or through the devolved nations); or continue to co-ordinate with the EU in the administration of the function. While each of these three options raise important questions of law and administration, we are concerned here with the range of administrative powers and duties government is choosing to simply ‘delete’ via SI in the course of the Brexit process.

What is being deleted?

We are already seeing some administrative functions effectively deleted. They range in their apparent significance from minor to potentially very serious. There are also partial deletions, e.g. where a power is to be assumed on the national level but requirements about how a power should be exercised are removed.

Finding examples is not an easy task: the explanatory notes attached to SIs do not necessarily explain this type of change and the content of the SIs typically makes little sense unless it is placed within the wider legislative jigsaw of which it is a piece. The following examples serve as illustrations of a wider pattern.

  • In the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018, BEIS removed access to online dispute resolution for UK consumers by revoking Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes.
  • The Explanatory Note to the Social Security Coordination Regulations, relaid in January 2019, states they have removed the requirement on the UK to make provisional payments to a claimant in the UK while a dispute is being resolved between the UK and EU member states relating to which state has the social security obligations to make payments.
  • The Equality (Amendment and Revocation) (EU Exit) Regulations 2018 retain Regulation 4(1) of the Equality Act 2010 (Amendment) Regulations 2012 which provides for the Treasury to publish a report from time to time reviewing whether women and men are receiving equal treatment in access to insurance services in the UK. However, the amending regulations removed regulation 4(3), which stated that the insurance services report must set out the objectives to be achieved by the Equality Act’s regulatory system as regards insurance services, and whether those objectives were being achieved.

There are also some trends in deletion we are observing that cut across multiple SIs and different policy areas. For instance, we are observing the deletion of articles in EU Regulations that require effective, dissuasive, and proportionate penalties. For instance, Article 5(8) of Council Regulation (EC) No. 2173/2005 provides for member states to impose effective, proportionate, and dissuasive penalties for breaches of the EU timber importation licensing scheme. This article has been deleted by the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018 with no alternative penalties regime or in fact any reference to penalties inserted into Council Regulation (EC) No. 2173/2005. The justification for the removal is unknown because its removal is not recorded in the accompanying explanatory note. Similarly, Article 36(3) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy is removed by the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018. Article 36(3) states ‘Member States shall adopt appropriate measures for ensuring control, inspection and enforcement of activities carried out within the scope of the CFP, including the establishment of effective, proportionate and dissuasive penalties.’ Again, this omission was not noted in the explanatory note to the regulations. In an entirely different sector, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 omits an EU law requirement for the imposition of effective, proportionate, and dissuasive penalties for the illicit manufacture of drug precursors. The explanatory note makes no reference to the removal of this Article, despite references to penalty provisions elsewhere in the explanatory note.

Why is deletion worthy of analysis?

SIs which, as part of the Brexit process, delete administrative functions presently held by the European Union constitute a subject worthy of analysis for multiple reasons. By the end of the process, the State may well have been redefined, with aspects of its responsibilities carved out as functions transferred from the EU to the UK are deleted. There are various—potentially very significant—practical implications of this, as demonstrated by the examples we have offered above. From a wider perspective, however, this category may also reveal something important about the difference between the governing styles and priorities of the European Union and the UK. Alternatively, it could be said that the deletion of functions may just be a government under pressure taking an easier route. If that is true, it will tell us something about the Brexit reform process and the quality of the SI legislative process in scrutinising such choices. Finally, if the category of deleted functions is large, we may find reasons to be sceptical of any suggestion—which Richard Rawlings raised the prospect of in an important recent report—that the Brexit process may lead to the ‘filling back in’ of the UK state that was, in part, ‘hollowed out’ by the transfer of power to the European Union in recent decades.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

(Suggested citation: A. Sinclair and J. Tomlinson, ‘Deleting the Administrative State?’, U.K. Const. L. Blog (7th Feb. 2019) (available at https://ukconstitutionallaw.org/))




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