You can teach a new court Mangold tricks – the horizontal effect of the Charter right to paid annual leave

Filippo Fontanelli, Senior Lecturer in International Economic Law, University of Edinburgh

On 6 November 2018, the Court of Justice of the European Union (the Court) delivered three judgments relating to paid annual leave. Some of its remarks transcend the specific topic, and touch on constitutional matters: the impact of the EU Charter of Fundamental Rights on private parties, the allocation of competences between the EU and the Member States, and the application of EU secondary law.

These cases teach a couple of lessons, and raise a wider point. The lessons are useful: first, alongside the right to non-discrimination and effective judicial protection, the right to annual paid leave in the Charter has direct effect not only in vertical disputes (ie disputes between the individual and the State), but also in horizontal disputes (ie disputes between individuals), even though EU Directives dealing with the same issue still do not in themselves have such horizontal direct effect.  Second, the Charter sometimes binds State acts in a decisive manner. This occurs rarely and, curiously, so far exclusively in disputes between individuals, when the domestic law transposing a directive is not in good order.

The wider point concerns the Charter’s application to domestic measures. In these cases, EU secondary law could not displace domestic measures, because Germany had not transposed a directive correctly. The directive’s mere existence, however, warranted the Charter’s application, and in turn enabled domestic courts to disregard German law and enforce the right to annual paid leave.

The now familiar combo “unimplemented directive plus Charter right” seems a Munchhausen trick. To justify the practice, one should go back to the Mangold case (in which the CJEU ruled that, prior to the Charter having binding force, the general principles of EU law meant that the right to non-discrimination could apply between private parties even if a Member State had not implemented a Directive), and perhaps look deeper into the difference between direct applicability and direct effect, or between a norm’s application and its scope of application. After looking back and looking in-depth, it is still difficult to see precisely how the Charter applied.

The judgments

In cases C-619/16 and C-684/16 Kreuziger and Max Planck, the facts were comparable. Messrs Kreuziger and Shimizu, respectively employed by the Land of Berlin and the Max Planck Institute, had failed to take the entire period of paid annual leave to which they were entitled. After their employment ended, the former employers denied their request to receive payment in lieu of leave. German law appeared to authorise the employers’ position that a failure to request paid annual leave automatically entailed its lapse upon termination.

The Court disposed of the Kreuziger case quickly, due to the dispute’s vertical nature (the employer was a German Land). Article 7 of Directive 2003/88 (the working time Directive) clearly confers the right to paid annual leave and, accordingly, payment in lieu for the leave not taken; the Court recently ruled on this issue in Bollacke. The Court dusted off the direct effect spiel. Since “provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals, in particular against a Member State and all the organs of its administration” [21], individuals can invoke the Directive and the judges must set aside domestic law if need be. The automatic lapse of this right upon termination of employment, without any safeguard to make sure that the employee could exercise it beforehand, violated EU law.

The reasoning of the Max Planck ruling extended further, since the main proceedings concerned a dispute between private parties. The reasoning of Kreuziger was copy-pasted: Article 7 of the Directive precludes an automatic lapse of the right to paid leave triggered by a mere failure to exercise it [40]. National courts must arrive, to the extent possible, at an interpretation of domestic law consistent with the Directive.

Failing all attempts at consistent interpretation, Mr Shimizu could not rely on the Directive alone, since “Max Planck had to be considered an individual” [65], and directives normally lack horizontal direct effect [68]. The Court thus turned to Article 31(2) of the Charter on the right to annual paid leave, noting that it entailed a clear, enforceable right, withstanding only derogations in compliance with Article 52(1) of the Charter [73]. Article 31(2) of the Charter needing no implementing act to operate, it could warrant disapplication of contrary domestic law:

74           The right to a period of paid annual leave, affirmed for every worker by Article 31(2) of the Charter, is thus, as regards its very existence, both mandatory and unconditional in nature, the unconditional nature not needing to be given concrete expression by the provisions of EU or national law, which are only required to specify the exact duration of annual leave and, where appropriate, certain conditions for the exercise of that right. It follows that that provision is sufficient in itself to confer on workers a right that they may actually rely on in disputes between them and their employer in a field covered by EU law and therefore falling within the scope of the Charter.

75           Article 31(2) of the Charter therefore entails, in particular, as regards the situations falling within the scope thereof, that the national court must disapply national legislation negating the principle [that the right to paid leave and/or payment in lieu cannot lapse automatically].

The last hurdle for the direct invocability of Article 31(2) of the Charter in German courts was the dispute’s horizontal nature. The Court recycled from its own case-law the bold suggestion that Article 51(1) of the Charter, which sets out who is bound by the Charter, is ambiguous in this respect and does not preclude individuals from relying on the Charter against each other:

76           … although Article 51(1) of the Charter states that the provisions thereof are addressed to the institutions, bodies, offices and agencies of the European Union … and to the Member States only when they are implementing EU law, Article 51(1) does not, however, address the question whether those individuals may, where appropriate, be directly required to comply with certain provisions of the Charter and cannot, accordingly, be interpreted as meaning that it would systematically preclude such a possibility.

Notably, the Court distinguishes Article 27 of the Charter on workers’ consultation (at issue in AMS) from Article 31(2) on annual leave, because the former Charter Article refers to national and EU law limits and the latter Charter Article does not. If this is the test for whether Charter provisions can have horizontal direct effect, it should be noted that most of the Charter provisions on social rights refer to national and EU limits – but most of the other provisions of the Charter do not.

73      By providing, in mandatory terms, that ‘every worker’ has ‘the right’ ‘to an annual period of paid leave’ — like, for example, Article 27 of the Charter which led to the judgment of 15 January 2014, Association de médiation sociale (C‑176/12, EU:C:2014:2) — without referring in particular in that regard to the ‘cases’ and ‘conditions provided for by Union law and national laws and practices’, Article 31(2) of the Charter, reflects the essential principle of EU social law from which there may be derogations only in compliance with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the fundamental right to paid annual leave.

The Joined Cases C-596/16 and C-570/16 (Wuppertal v Bauer; Willmeroth v Broßonn) largely replicated the reasoning of the Max Planck and Kreuziger cases. Only, in the underlying disputes, it was rather the employees’ heirs seeking payment in lieu, on behalf of the deceased workers. According to the referring judge, German law provided that the right to unpaid annual leave, necessarily turned into payment in lieu upon the workers’ death, would not become part of their estates.

Building on prior case law (discussed here), the Court, besides noting the importance of the right under Article 7 of the Directive, stated that it should accrue, after the death, to the worker’s estate:

48      … from a financial perspective, the right to paid annual leave acquired by a worker is purely pecuniary in nature and, as such, is therefore intended to become part of the relevant person’s assets, as a result of which the latter’s death cannot retrospectively deprive his estate and, accordingly, those to whom it is to be transferred by way of inheritance, from the effective enjoyment of the financial aspect of the right to paid annual leave.

With respect to horizontal disputes (like the Willmeroth v Broßonn controversy, whereas Bauer was a public employee), the reasoning of the Court was identical to that used in the Max Planck case [87-91]. Article 31(2) of the Charter can be invoked in disputes between individuals, possibly leading to the setting aside of domestic norms like those at issue in the main proceedings.

The Charter’s effect on domestic measures

The Charter has many functions. It guides the interpretation of EU law and serves as standard of legality of EU acts. It does not enlarge the competences of the EU at the expense of the member states, but binds their action when they act as agents of the EU. In this residual scenario, delimited by the sibylline “implement[ation of] EU law” notion of Article 51(1) of the Charter, the Charter should serve as standard of EU-legality of national measures. In other words, the Charter can preclude some national measures.

The Charter applying to state measures falling “within the scope of EU law,” (a formula sanctified in Fransson [21], and unsurpassably frustrating), the following circumstances can arise:

a)      EU law does not apply to the matter, so neither does the Charter;

b)      EU law applies to the matter, and precludes the domestic measure. The Charter applies too: it might also preclude the domestic measure (“double preclusion”) or not;

c)       EU law applies to the domestic measure, but does not preclude it. The Charter applies too, and likewise does not preclude it;

d)      EU law applies to the domestic measure, without precluding it. The Charter, which also applies, precludes the domestic measure.

In the scenarios a), b) and c), the Charter is irrelevant to the ultimate determination of EU-legality.

Only in scenario d) does the Charter show its teeth, doing its standard of review job fully. Exclusively in this scenario, an otherwise EU law-compliant measure can breach the Charter and, accordingly, might be set aside by domestic judges. To this day, scenario d) has never occurred in its garden variety. Never has been the case that, for instance, a national measure that justifiably restricts one fundamental freedom (and falls therefore under the scope of Treaty law, without being precluded thereby) was found to breach the Charter. This unlikely coincidence warrants a deeper analysis (but not here), because it suggests that the Court is discreetly keeping the Charter in a locked drawer, lest member states react like the German Constitutional Court reacted after Fransson. A low-profile use of the Charter – one that essentially emptied it of its post-Lisbon potential – is what the Court’s record shows in the last 9 full years.

However, there is a hybrid category of cases, halfway between scenarios b) (double preclusion) and d) above. The paid annual leave rulings of 6 November 2018 belong in this atypical group, insofar as they relate to horizontal disputes. As far as their bearing on vertical disputes, they are squarely b)-type rulings: the measures are precluded by the Directive, and the breach of the Charter is just redundant.

The discussion below, instead, focuses only on the horizontal dimension of these rulings.

Did the Directive apply?

That the Directive applied must be assumed – otherwise the Charter would not have applied at all. Yet, the Directive could not apply to determine the outcome of the underlying dispute, for lack of horizontal direct effect. Can it be said that the Directive applied, and precluded the national measures, but was ineffective? The (ineffective) application of the Directive to the underlying scenario would then warrant the (very effective) application of the Charter. The Charter alone would warrant the disapplication of the German norms that breached both the ineffective Directive and the effective Charter.

The easier construction – that the Directive, lacking horizontal direct effect, could not apply – is untenable. Admitting that the Directive did not apply contradicts the notion that the German law fell within the “scope” of EU law, and would rule out the relevance of the Charter tout court. Some finer reasoning must support the Court’s decision. I suggest a couple of unnoticed distinctions that might help.

Direct application is not the same as direct effect: This is an all-time favourite for mid-term exams, so why not give this distinction a day in Court? Perhaps, the Directive did apply somehow (direct applicability), but could not be relied upon in domestic proceedings (lack of horizontal direct effect). This would explain the triggering of Article 51(1) of the Charter, but also the impossibility to use the Directive to solve the disputes between Mr Shimizu and Mrs Broßonn and their employers. Certainly the Directive applied, somehow. As soon as the transposition period expired, it deployed its legal obligatory effects and, even regarding horizontal disputes, triggered immediately Germany’s responsibility for failure to transpose correctly, which individuals can invoke to seek compensation without recourse to any implementing measure.

On the lack of direct effect, there is no real mystery: Article 7 of the Directive creates a precise and unconditional right, capable of invocation in domestic proceedings, so the direct effect checklist is in order. However, it can only work in vertical disputes. This distinction between direct applicability and direct effect could justify the Court’s truncated use of the Directive (sort-of applying to bring the Charter in under Article 51(1) of the Charter; not-really applying in its own right).

Scope of application is not the same as application: This is a contrived distinction, but it might operate in the background of these rulings. The Directive effectively cannot apply in domestic proceedings. However, the German law falls under the “scope” of the Directive, in a somewhat more abstract sense, as if applicable and applied were distinguishable. To accept that EU law reaches further than the circumstances to which it can actually apply is a head-scratcher. Yet, that is what the Court prescribed: domestic law must be set aside for intruding in an area that the Directive could not operate (the direct regulation of duties between private parties) but it nevertheless occupied – somehow. In the wake of Kücükdeveci (an earlier judgment on discrimination in employment), I noted the risk:

… it is necessary to evaluate the implications of Kücükdeveci: if the general principle of non-discrimination has a wider scope than the measures codifying it (the Directive), it follows that it can be invoked in a series of disputes that, despite concerning EU-regulated matters, fall outside the scope of the Directive.

Putting lipstick on Mangold

The distinctions above are nowhere mentioned in the rulings. So, if the Directive could not operate in domestic proceedings, how did the Court justify German law falling under the scope of EU law? This week’s rulings proffer only minimal reasons, but summon precedents to convey the idea that this apparent misalignment is nothing to worry about. From Bauer:

53           Since the national legislation at issue in the main proceedings is an implementation of Directive 2003/88, it follows that Article 31(2) of the Charter is intended to apply to the cases in the main proceedings (see, by analogy, judgment of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 43).

If one goes down the rabbit hole of cross-citations, however, Mangold awaits on the bottom. In terms of legal reasoning, it does not get any more controversial than Mangold. The judgment exasperated the former president of the German Constitutional Court and drafter of the Charter, who penned an op-ed wishing the Court of Justice to “Stop.” Ultimately, Mangold was criticised for encroaching into the Member States’ competence.

There are, in fact, a series of cases in which the Court prescribed the horizontal direct effect of a fundamental right, using a directive as a trampoline. Mangold was the first case, and Kücükdeveci followed. Dansk Industri (discussed here), also on discrimination on grounds of age, pulled the same trick, this time using the Charter rather than a general principle of law. AMS (discussed here) replicated the reasoning with respect to the workers’ right to consultation and information in the Charter, accepted its applicability but concluded that the Charter’s norm was not self-executing and stopped short of confirming its horizontal direct effect.

Egenberger (discussed here), very recently, asserted the horizontal effect of the right to non-discrimination on grounds of religion and the right of effective access to justice. In IR (discussed here), the Court consolidated Egenberger, and wisely recalled that non-discrimination is essentially a general principle: if the AMS explanation why the Charter applies to individuals were not compelling, the unwritten source might apply more liberally and come to the rescue just like in the good Mangold days:

69           Before the entry into force of the Treaty of Lisbon, which conferred on the Charter the same legal status as the treaties, that principle derived from the common constitutional traditions of the Member States. The prohibition of all discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter, is therefore a mandatory general principle of EU law and is sufficient in itself to confer on individuals a right that they may actually rely on in disputes between them in a field covered by EU law.

Conclusion

In all the cases mentioned, individuals could not rely on the directives in domestic proceedings. Yet, each directive somewhat marked the “scope” or “cover[age]” of EU law and let the fundamental right finish the work (unless some ingrained deficiency made it non self-executing, as in AMS). The simple annotation that the German law “is an implementation of [the] Directive” sanded over the uncomfortable truth: if the Directive was insufficient to set aside the norms of German law, perhaps these norms of German law lay outside the scope of EU law, and the Charter should not have found its way in the proceedings.

A sceptical reader might wonder what “a field covered by EU law” means, and wonder whether the Charter spilled over from the EU-law scope comfort zone. An optimist one can celebrate the expansive force of social rights. Horizontal application of fundamental rights translates into the creation of EU-based fundamental duties, and lets us catch a glimpse of solidarity in the making.

Barnard & Peers: chapter 9, chapter 20, chapter 6

Photo credit: PureTravel

(Re)constructing the employment law hierarchy of norms: The Charter will not, should not and need not apply?

Niall O’Connor, Lecturer in Law, University of Essex

The Charter and Brexit

During the Brexit referendum campaign, it was Boris Johnson who led the way in deriding the Charter’s influence over British law. In the Telegraph article in which he first threw his support behind Brexit, Johnson wrote ‘[u]nder the 55-clause “Charter of Fundamental Human Rights”, including such peculiar entitlements as the right to found a school, or the right to “pursue a freely chosen occupation” anywhere in the EU, or the right to start a business (…) These are not fundamental rights as we normally understand them, and the mind boggles, as to how they will be enforced’.

For some eurosceptics, such as Johnson, the Charter is an unacceptably powerful weapon in the EU Court’s (CJEU) arsenal, capable of over-riding national sovereignty. Any law student could point out the inaccuracy of Johnson’s perception of the Charter. Indeed, anyone could highlight the inconsistency between raising fears of the Charter’s influence while simultaneously sneering at the difficulties associated with enforcing its admittedly rather nebulous provisions. Nonetheless, the mischaracterisation of the Charter and indeed the role of the CJEU more generally has gained traction and has, to an extent hamstrung the Brexit negotiations from the outset. Particular suspicion has been directed at the Charter’s Solidarity Title (Title IV).

The Solidarity Title

Title IV of the Charter contains a number of fundamental Employment Rights, including article 27 on information and consultation, article 28 which grants workers the right to collective bargaining, article 30 which provides for the right not to be dismissed unfairly and article 31 on the right to fair and just working conditions, Collectively, these rights will be referred to as the ‘Employment Rights’, that is to say those rights that have a particularly close connection to the contract of employment rather than the broader notion of ‘social’ or ‘labour’ rights. The Charter has been praised for its inclusion of social and economic rights alongside more traditional civil and political rights, but it has always been open to question whether the Charter’s Employment Rights are, or should be, considered human rights in the first place. 

Space precludes a more in-depth analysis of the human rights pedigree of social rights but the most obvious answer to this question is that the Charter’s Employment Rights are included in a fundamental human rights document and must therefore be human rights. (See for further detail, Virginia Mantouvalou, ‘Are Labour Rights Human Rights?’ (2012) 3 ELLJ 151.) This assertion is strengthened if we look to the Charter’s Explanations, which act as interpretative guidance. We can see that a number of the Employment Rights derive from earlier fundamental rights texts such as the European Social Charter (ESC) of the Council of Europe, the European Convention on Human Rights (ECHR), International Labour Organization (ILO) Conventions, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the UN Declaration of Human Rights (UNDHR). It would seem, then, that the Employment Rights have long been considered rights worthy of international protection.

In addition, many of the arguments levelled at the justiciability of social rights generally do not apply to the Charter’s Employment Rights specifically. First, none of the four Employment Rights necessarily entail any state expenditure and do not, therefore, involve the distribution of resources, although there are likely to be costs involved for employers (including in the public sector). Second, the four rights considered have largely been fleshed out in legislation and so in this respect cannot be criticised as being vague, abstract standards. In any event, article 1 of the Charter which protects human dignity is said in the Explanations to constitute ‘the real basis of fundamental rights’. It is clear that human dignity is the value underpinning all of the Charter’s rights, including the Employment Rights.

British antipathy to the Employment Rights has a long pedigree. It has been thought that the UK had achieved an opt-out from the Charter but this notion was dispelled by the courts (NS judgment). Catherine Barnard has suggested that there is only one true UK opt-out from the Charter. (‘The Opt-Out for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in Stefan Griller and Jacques Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty (Springer 2008).) This is to be found in article 1(2) of Protocol 30 which provides that ‘[i]n particular, and for the avoidance of doubt, nothing in Title IV (…) creates justiciable right applicable to (…) the United Kingdom except in so far as (…) the United Kingdom has provided for such rights in its national law’. This provision serves the role of ‘making sure that if any of the provisions of Title IV are in fact classed as rights they are not justiciable in respect of the UK’.

In other words, if any of the provisions in Title IV are found to be ‘rights’ as opposed to ‘principles’ then they will not be directly justiciable in UK courts. To a large extent, even this provision may not have been necessary. Article 52(5) of the Charter already provides that the principles (which the Employment Rights are presumed to be) only lead to rights to the extent that they are implemented in EU or UK law. Article 52(1) further emphasises the rights/principles distinction, providing that rights must be ‘respected’, whereas principles must merely be ‘observed’. (See further Case C-176/12 AMS (discussed here), the opinion in Case C-282/10 Dominguez; and Case C-356/12 Glatzel).

The right has viewed the Employment Rights with suspicion, fearing that they would ‘provide the basis for a judicial assault upon the UK’s (neo-) liberal employment legislation’. (Michael Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) CMLRev 617,666.) Labour lawyers and trade unionists, on the other hand, have tended to be more supportive, indeed the Labour party’s shadow Brexit minister, Keir Starmer continues to insist that the Charter should be preserved post-Brexit, with one of his six red lines for supporting the final deal being the defence of rights and preventing a race to the bottom. A consideration of the effects of the constitutionalisation of Employment Rights in the Charter shows that both views may have been somewhat misconceived.

The Consequences of Constitutionalisation

The most concrete expression of the constitutionalisation of the Employment Rights can be seen in their use as both a standard of review and as a tool of interpretation. Human rights as general principles have been used to interpret EU law from the earliest days of the Union’s existence (see Stauder). It is unsurprising, then, that it is in the interpretation of EU law that the Charter’s impact has been most keenly felt.

First, it should be noted that the CJEU has long adopted a purposive or teleological approach to interpreting EU employment legislation. A good example is the Working Time Directive (WTD). The purpose of that Directive is to lay down minimum requirements intended to improve living and working conditions. The CJEU has consistently held that the Directive must be interpreted broadly and purposively as any other interpretation would frustrate the objectives of the legislation (see Jaeger). Thus, the purposive approach was adopted long before the introduction of the Charter with its recognition in article 31 that limited working time and paid annual leave are fundamental human rights.

Since the Charter’s adoption, the CJEU continues to adopt this purposive approach, referring to the recitals and the objectives of the legislation but now simply adding the Charter into the teleological mix. (See my article, ‘Interpreting Employment Legislation through a Fundamental Rights Lens: What’s the Purpose?’ (2017) 8 ELLJ.) For example, in one recent judgment (ANGED), the CJEU starts by reaffirming that paid leave is a ‘particularly important principle of European social law’. It then notes, almost in passing, that the right is also found in the Charter. It then moves on to look at the objectives of the legislation to find that the Directive must be interpreted broadly. In other words, the effect of the inclusion of paid leave in the Charter is merely confirmatory of the conclusion the CJEU would have arrived at using existing purposive methods of interpretation.

Human rights as general principles of EU law have also long been used as a ground for reviewing not only the legality of EU acts, but also Member State acts falling within the scope of EU law. This role has now been taken up by the Charter. As there is no case law on the matter, the potential for the Employment Rights to act as a standard of review of EU legislation must be largely speculative, although the equality field provides a useful example of the Charter’s potential. In Test-Achats, articles 21 and 23 of the Charter on non-discrimination and equality were relied on to strike down EU legislation permitting difference of treatment between men and women in calculating insurance premiums. It might be that the granting of constitutional status to the Employment Rights may also have the effect of limiting the ability of the Union to adopt legislation derogating from those rights. For example, article 31 may prevent further derogation from the Working Time Directive. (In relation to article 27 see Peter Herzfeld Olsson, ‘Possible Shielding Effects of Article 27 on Worker’s Rights to Information and Consultation in the EU Charter of Fundamental Rights’ (2016) 32 International Journal of Comparative Labour Law and Industrial Relations 251.)

The Employment Rights have already been used as a standard of review of national legislation, although it is somewhat difficult to separate issues of review and interpretation. In many cases the CJEU is first asked to interpret EU legislation or the Charter before then considering the compatibility of national legislation with that interpretation. The CJEU does not have the competence to review national law directly.

Article 30 has been a weak standard of review of national law, with the CJEU usually finding that the issue is outside the scope of EU law and so the Charter is of no application (For instance, see Case C-117/14 Poclava). Article 27 has served litigants little better (see AMS, where the ECJ ruled that this Article had limited legal effect). Article 28 has been confined to considering whether rules set down in collective agreements could be reviewed for compatibility with EU law (Case C-297/10 Hennigs).

Article 31 is the Employment Right that has been most frequently invoked in the review of national legislation, although this may be a reflection of the fact that the WTD (which is stated in the Explanations to be a source of article 31) has been the subject of the most litigation. In King, the question for the CJEU was whether a worker who had been afforded a right to paid leave only part way through the employment relationship (if at all) lost that right if he did not take steps to invoke it. The UK Working Time Regulations stipulated that employees must take their paid annual leave in the relevant year or it is extinguished. AG Tanchev concluded that ‘in the light of the considerable normative weight of the right to paid annual under EU, international and Member State law, requiring a worker rather than an employer, to take steps to create an adequate facility for the exercise of paid annual leave would unlawfully make the existence of the right subject to a pre-condition’.

Overall, the influence of the Charter’s Employment Rights has represented an exercise in continuity. The extent of the Charter’s added value appears to be that the CJEU is more comfortable in relying on a written human rights text. To this extent, the CJEU has been emboldened in that its long-held approach to treating the provisions of employment legislation (most notably the concept of paid annual leave) as important social rights has now essentially been codified in the Charter, although there is a certain irony in a return to textualism to bolster a purposive approach. More democratically legitimate it may be, revolutionary it is not. (The same cannot be said of article 16 which provides for the freedom to conduct a business which has been used to radically disrupt existing approaches to the interpretation of the Transfer of Undertakings Directive. See Case C-426/11 Alemo-Herron.) Does employment law really have anything to lose, then, in the Brexit process?

The Effect on the Employment Law Hierarchy

Traditionally, the relationship between EU law and national law has not strictly been viewed as hierarchical. Rather, the interaction between the CJEU and domestic courts has been seen as one of cooperation rather than confrontation. With the enactment of the Charter, a new constitutional dimension has been added. Most civil law countries are used to conceiving of the employment relationship as consisting of a clear hierarchy of sources. This has not been true of the common law. It really makes no difference in what order the sources of labour law in the UK are discussed and the hierarchy at national level, to the extent that one can be said to exist, is capable of evolution or indeed inversion. It is useful, then, to bear in mind that there are currently a number of confused hierarchies in UK employment law (1) between EU law and domestic law and (2) within domestic law itself.

The EU-domestic hierarchy (1) can rather crudely be characterised as follows: (A) The Charter, as a constitutional human rights document sits at the pinnacle of the hierarchy of norms; (B) general EU law comes next as it must comply with the Charter but can also be used as a standard against which national law must comply; (C) this is followed by domestic law. The hierarchy at domestic level (2) (with a focus here on legislation and the common law) has never been clear and may now be in a double state of flux due to the Charter and Brexit. At domestic level (where the legislation is outside the scope of EU law), the classification of the Employment Rights as fundamental human rights in the Charter appears to have made very little difference.

The relationship between the common law and employment legislation has always been intimate. We need only think of the fact that access to protective legislation usually depends on classification as a worker or an employee, the tests for which derive from the common law. The common law has at times, therefore, had the effect of impeding access to employee-protective measures (Tanton [1999] EWCA Civ 949). By and large, this has been an entirely domestic matter, with little consideration given to the human rights nature of legislation outside the scope of EU law.

Article 30 for example, provides that the right not to be unfairly dismissed is a human right, yet the EU has not adopted comprehensive legislation governing this right. This has meant that in the context of unfair dismissal, the UK courts have been free to adopt a largely employer-friendly approach. Indeed, contrary to the CJEU’s purposive approach in the employment field, common law judges tend to exaggerate contract law tests when applied to employment legislation. (Steven Anderman, ‘The Interpretation of Protective Employment Statutes and Contracts of Employment’ (2000) 29 ILJ 223.)

In certain circumstances, however, the common law has been malleable to legislative intervention, leading to an absorption of social rights standards. A particularly good example is the common law implied term of mutual trust and confidence. It was the need to come to a definition of the constructive dismissal concept that led the courts to develop this implied term in order to modify the notion of repudiatory breach found in commercial contracts (Malik [1997] UKHL 23).

Overall then, the fact that certain pieces of domestic legislation (outside the scope of EU law) have fundamental rights implications has largely been irrelevant to the domestic hierarchy of norms. Sometimes the common law impedes social legislation, sometimes it facilitates it. What, then, are the implications of Brexit for these already unstable hierarchies?

The EU Withdrawal Bill

The UK Government has made it clear that, in its opinion, there can be no real Brexit without removing the UK from the somewhat ambiguously termed ‘direct jurisdiction’ of the CJEU although there are currently ongoing attempts from both the Labour party and a number of Conservative backbenchers to ensure that the Charter is codified in UK law. Just two weeks ago, the Government was forced to postpone consideration of the Charter’s future role. In any event, it will fall on the UK courts to take on the full range of tasks associated with the interpretation and application of (former) EU employment legislation. Clause 2(1) of the Bill provides that EU-derived legislation applicable before Brexit will continue to have effect in UK law. Clause 5(1) makes clear, however, that the principle of supremacy of EU law will no longer strictly apply, although it will, according to clause 5(2) continue to govern the ‘interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’.

This may have continued significance for the ability of litigants to enforce their EU-derived employment rights. In Benkharbouche, workers at the embassies of Sudan and Libya were found to be entitled to have their EU-derived employment law (discrimination and working time) claims heard in a UK Employment Tribunal despite the presence of an apparent conflict with the State Immunity Act 1978. Preventing reliance on these EU rights would breach article 47 of the Charter, which guarantees access to justice. (The Charter issues were discussed more fully in the Court of Appeal ruling, discussed here).

This judgment should also remind us of the protection that will continue to be provided by article 6 of the ECHR, the Convention right to a fair trial. Lord Sumption held that ‘a conflict between EU law and English domestic law must be resolved in favour of the former, and the latter must be disapplied; whereas the remedy in the case of inconsistency with article 6 of the Human Rights Convention is a declaration of incompatibility.’ (para 78)

Echoes of this judgment could also be seen in Unison, in which the Supreme Court quashed the order introducing Employment Tribunal Fees. That judgment starts by noting that many of the rights which are enforceable before Employment Tribunals are EU-derived rights which thus engages article 47 of the Charter. That judgment is also significant for the Court’s exploration of alternative avenues to human rights protection, notably the right to access justice at common law.

The effect of clause 5(2) is to create a new category of ‘retained EU law’ that must, somehow, fit into the existing hierarchy of norms. For employment law purposes, this may not an immediate issue. Much of the existing EU employment acquis has already been implemented in domestic legislation. However, there still remain serious doubts as to the precise status of post-Brexit CJEU case law (clause 6 retains that court’s pre-Brexit case law, with more flexibility to amend that case law) and whether this can be applied or departed from by the domestic courts. Lady Hale, the newly appointed President of the Supreme Court has called for clarification in this area. Most importantly, for our purposes, the Bill is clear that the Charter will not apply.

The Charter Will Not, Should Not and Need Not Apply?

Will Not?

Clause 5(4) of the Bill provides that ‘the Charter of Fundamental Rights is not part of domestic law on or after exit day’. This presents some major practical difficulties. First, it is often impossible to pinpoint precisely the influence of the Charter in CJEU decisions. Sometimes, the Charter is front and centre in employment law decisions. In others, it is barely mentioned (if at all). In earlier cases, the CJEU may simply have been reticent in its use of the Charter, recognising the sensitive nature of social rights and grappling (as it continues to do) with the distinction between rights and principles.

 Despite the somewhat sceptical view of the Charter’s influence in this field of law outlined above, it may well be that CJEU is simply not being explicit in its use of the Charter, relying instead on existing interpretative methods, but with an eye to Charter for guidance. In any case, the Charter and employment legislation enjoy a symbiotic relationship. It has been noted that the Explanations act as interpretative guidance. The explanations to the Employment Rights refer to existing EU employment legislation. Therefore, employment legislation must be interpreted in light of the Charter which must itself be interpreted in light of that very legislation. Decoding this cycle may prove an impossible task.

Should Not?

It has been argued that incorporating the Charter into domestic law post-Brexit would be undemocratic. This is because the interpretation of the Charter rights is entirely a matter of the CJEU. Eduardo Gill-Pedro argues in a recent blog that the CJEU interprets the Charter in the light of the objectives of the Union. Once the UK leaves the Union it will no longer share those objectives and so it would be undemocratic to rely on the Charter.

I would argue that the Charter does not merely serve as an overarching political guide to the future direction of the Union. Certainly, in the employment context it has a less ambitious remit, steering as it does, the interpretation and review of employment legislation. If the Government is committed to preserving the existing employment law acquis it should have nothing to fear from retaining the Charter. In any case, stripped of its constitutional status into the future, the Charter may prove little threat to the amendment or repeal of domestic employment legislation save to the extent that the supremacy principle continues to apply on a limited basis. There would, therefore, be no ‘intrusion’ of external values into the legislative process.

Need not?

Finally, it could be argued that whether the Charter applies or not really makes very little practical difference. First, as was noted at the start of this blog, the effect of the Charter’s Employment Rights, largely dismissed as mere ‘principles’ has been somewhat disappointing. Second, and more significantly, the Repeal Bill itself which at clause 5(5) preserves fundamental rights that exist autonomously of the Charter and ‘references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles’.

It is clear, then, the Charter will continue to play a role in the guise of those provisions that are already reflected in the general principles of EU law (although Schedule 1 to the Withdrawal Bill will limit the legal effect of those general principles). In many areas, but notably the equality field, it was the general principles that opened the way to the application of fundamental rights in employment law, although I accept that the adoption of the Charter had an emboldening effect even prior to its granting of full legal effect. (Compare Case C-144/04 Mangold and Case C-555/07 Kücükdeveci) Although, admittedly the status of the Employment Rights as general principles remains unclear and the Withdrawal Bill makes it clear in any event that the general principles cannot act as a standard of review for retained EU law.

Separating the role of the Charter and the general principles will in any case be difficult. We need only look to Norway to see how the general principles can have an effect on those not formally bound by the Charter. The European Free Trade Association (EFTA) Court has from the outset referred to judgments of the CJEU. The ‘homogeneity’ principle has had a profound impact, leading the EFTA Court to apply CJEU decisions that post-date the EEA Agreement. (Carl Baudenbacher, ‘The Relationship Between the EFTA Court and the Court of Justice of the European Union’ in Carl Baudenbacher (ed), The Handbook on EEA Law (Springer 2016) 179, 184.)

This principle governs the relationship between the European Economic Area (EEA) Agreement and EU law. Article 6 of the EEA Agreement provides that ‘[w]ithout prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of [the EU Treaties] and to acts adopted in application of [those Treaties], shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the [CJEU] given prior to the date of signature of this Agreement’. The EFTA Court has held that ‘the objective of establishing a dynamic and homogenous European Economic Area can only be achieved if EFTA and EU citizens, as well as economic operators enjoy, relying on EEA law, the same rights in both the EU and EFTA pillars of the EEA’. (Case E-18/11 Irish Bank Resolution Corporation v Kaupping para 122.) The homogeneity principle extends to fundamental rights, with the Court referring to judgments of the ECtHR and CJEU as well as AG Opinions in fundamental rights cases (Case E-2/03 Asgeirsson and Others para 23; Case E-8/97 TV 1000 para 26).

Conclusion

The instincts of both labour lawyers and Charter sceptics may have been wrong. Far from representing a Trojan horse, bringing in its wake alien social rights to disrupt the common law’s traditional flexibility, the Charter’s Solidarity Title has proven to be rather a damp squib, except of course that it has actually had the effect of promoting the development of a countervailing business freedom found in article 16. In AGET Iraklis, for example, the CJEU held that article 16 is closely related to the four economic freedoms contained in the EU Treaties and can be used to defeat competing employment rights. (See also Alemo-Herron)

And yet, it is possible that we labour lawyers simply expected too much from a document that was explicitly adopted to codify the existing, cautious and piecemeal approach to fundamental employment rights. And yet still, it is possible to be too sceptical. The reality is that the Charter’s Employment Rights do have the potential to act as a bulwark against legislation that might undermine the rights of workers – in particular against any attempt to lower the standard of protection for employment rights below the level established by retained EU law.

The Charter’s use as a standard of review is perhaps its most powerful function and yet, at least in the employment field, this function has yet to be fully tested. It may be that we are leaving the Charter party before it has even got started. There is no doubt that the hierarchy of employment law norms is now in a state of flux and we do not know where the pieces may fall. What we do know is that, if the UK government gets its way, the Charter will not be among them. Without the Charter, the human rights landscape in the employment field will be somewhat impoverished. Left at the mercy of the common law, it is likely that UK employment legislation will travel in an altogether more deregulatory direction.

Barnard and Peers: chapter 9, chapter 20

Photo credit: Sky News

Privacy at work: the Strasbourg Grand Chamber clarifies the law

Lorna Woods, Professor of Internet Law, University of Essex

Background

The case of Bărbulescu concerned the extent to which employers could track employee communications, including Internet use, when those communications might include private correspondence rather than business communications. Here, an employer dismissed an employee for failing to respect a prohibition on the use by employees of work equipment for private reasons. The employee sued his employer in the Romanian courts but lost, so brought a claim under Article 8 ECHR, which protects the right to private and family life, home and correspondence. In particular, Bărbulescu objected to the fact that, to find that he had violated the policy, his employer monitored his communications. This he claimed was contrary to the jurisprudence of the European Court of Human Rights in Copland v UK.  The Fourth Section of the Strasbourg court held, at the beginning of 2016, that the legal situation in Romania did not give rise to a violation of Article 8. While the media tended to summarise the position as the court permitting entirely unrestricted monitoring, this was not entirely the position as noted by Steve Peers here. The matter was in any event referred to the Grand Chamber and it is with this judgment that this note is concerned. The Grand Chamber came, albeit not unanimously, to the opposite conclusion from the Fourth Section, finding that there had been a violation of Article 8 ECHR.  So, why has it come to this conclusion?

Judgment

The Grand Chamber first considered the applicability of Article 8 to the situation in issue.  Re-iterating a long list of previous cases, it emphasised that Article 8 should not be understood narrowly and includes both the right to develop relationships with others and professional activities or activities taking place in a public context. The Court noted two further separate points. First it commented that:

[r]estrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others [para 71].

In this context work is important in providing the possibility for individuals to develop relationships with others. Secondly, while ‘life’ in the list of interests protected by Article 8 is qualified by the adjective ‘private’, the term ‘correspondence’ is not so limited [para 72]. The Court noted that while the test of a reasonable expectation of privacy has been used to determine the scope of Article 8, it here re-iterated that is a significant though not necessarily conclusive factor [para 73]. The Court concluded that while the employee was aware of the ban, he was not aware of the monitoring; that some of the content was intimate in nature; that he alone had the password to the account. The Court left open the question of whether Bărbulescu had a reasonable expectation of privacy in the light of the employer’s policy (of which Bărbulescu was aware), but then held that ‘an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist …’ [para 80]. Both the right to private life and the right in relation to correspondence were therefore engaged.

The Court then considered whether there had been a violation. In this the Court was faced with the question of whether there was a positive obligation, given that the employer was not a public body. The Court noted that the monitoring of the communications could not be regarded as “interference” with Bărbulescu’s right by a State authority [para 109]. Nonetheless, the measure taken by the employer was accepted by the national courts, thus engaging the State’s positive obligations [paras 110-111]. It re-stated that the test was that of whether a fair balance had been struck between the competing interests. The Court noted that labour law has specific characteristics which allows for a wide margin of appreciation. This is not, however, unlimited; States must ensure that there are safeguards in respect of the monitoring of communications. It identified a number of issues:

-          Clear advance notification of the possibility of monitoring;

-          The extent of the monitoring and the degree of intrusion, taking into account the difference between monitoring ‘flow’ of communications and their content;

-          The justification for the monitoring;

-          Whether less intrusive mechanisms for monitoring exist;

-          The consequences for the employee;

-          Whether adequate safeguards were in place.

Further, there should be the possibility of a domestic remedy. The Grand Chamber took the view that the domestic courts did not consider or did not give appropriate weight to all the issues identified [para 140]. Notably, it did not appear the employer had given Bărbulescu sufficient advance notice of "the extent and nature of [its] monitoring activities, or of the possibility that [it] might have access to the actual content of his messages". The Court was also sceptical of the national courts acceptance of the justification for the intrusion. There was therefore a violation of Article 8.  There was dissent, however, on the assessment of the national courts’ approach to the matter.

Comment

The headline news from this is that the Grand Chamber came to a different determination on the issue of breach from the Fourth Section. It should be noted, however, that even that chamber did not suggest that unlimited monitoring would be permissible (see e.g. Steve Peers’ analysis). Nonetheless in purely practical terms, the Grand Chamber judgment provides a clear statement that workplace privacy cannot be reduced to zero, as well as a list of considerations that will be useful not just for national courts but also employers in considering policies regarding personal communications in the workplace. Note that this case concerned a private employer not – as in Halford and Copland – a public body as employer so the considerations highlighted will be of relevance to all employment relationships. In this, the Grand Chamber seemed to respond to some of the concerns expressed by Judge Pinto de Albuquerque in his dissent from the Fourth Section judgment regarding the factual specificity of the case. The judgment also seems to recognise the importance of work as part of daily life, an important point given the blurring of boundaries in the ‘always on’ culture of smart devices in which work-related information and communications co-habit with those of life outside work.

There are some further points to consider. The first is the scope of Article 8 and in particular the ‘reasonable expectation of privacy’.  Article 8 lists a number of aspects protected: ‘private and family life’ – usually seen as two separate elements ‘private life’ and ‘family life’ – ‘home’ and ‘correspondence’. As written, it seems that these are distinct elements yet the reasoning of the Court does not always treat them as separate; arguably the Court’s previous approach in making the matter one of a ‘reasonable expectation of privacy’ blurs any boundaries between these elements and in so doing, limits the scope of protection as far as ‘correspondence’ is concerned. The Grand Chamber seemed alive at least in some regards to this point: it specified that there is no requirement that correspondence be private. If that is the case, however, why is the issue of reasonable expectation of privacy relevant? Indeed, the Grand Chamber noted that the test of reasonable expectation of privacy is not the be all and end all of Article 8 (see para 78). Despite this recognition, the Grand Chamber still turned the question into one of a reasonable expectation of privacy:

It is open to question whether – and if so, to what extent – the employer’s restrictive regulations left the applicant with a reasonable expectation of privacy [para 80].

Is the Court here suggesting that correspondence is protected by Article 8 only when there is a reasonable expectation of privacy? Seemingly so, yet the Grand Chamber continued to state:

…. an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary [para 80].

The position is consequently somewhat unclear. It would be more straightforward were the Court to recognise that correspondence constitutes a separate class aside from private life however broadly understood, and to deal with scope of Article 8 as a separate issue from that of interference and justification.  The current position unfortunately seems to be embedded in a long line of case law.

Bărbulescu is distinct from previous case law on employee monitoring in that it involved the State’s positive obligations. The Court has tended to adopt a different approach in regard to positive obligations than negative obligations. Rather than look at Article 8(2) and the tests of legitimate objective, lawfulness and necessity (in a democratic society), it adopts a fair balance test within which the State has a broad margin of appreciation. On this basis, the side-lining of the Copland ruling – which fell at the lawfulness stage in a standard Article 8(2) analysis – is understandable.  The Court seems to suggest, however, that there are parallels between positive and negative obligations:

[i]n both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State [para 112].

It is questionable whether the derogation from an individual’s rights by state actors really should be seen as being about a fair balance, a stance which arguably nudges the focus of protection away from human rights as paramount. Nonetheless, here the Court brings in factors from the standard Article 8(2) state surveillance case law aimed at preventing abuse of secret surveillance capabilities to provide guidance in finding the fair balance. It is noticeable that Copland is not considered but instead the State surveillance cases of Klass and Zakharov. 

It might be that the Grand Chamber accepted the referral because it wished to deal with failure of the Fourth Section to consider the EU Data Protection Directive, which protects against the collection of personal data without the explicit consent of an individual (or justified grounds for such collection).  This point was highlighted by Judge Pinto de Albuquerque. If so, the judgment fails to engage with EU data protection law in any meaningful way. The Grand Chamber noted that the national courts had considered the directive, but did not consider those rules themselves. Insofar as the Court does refer to international and European standards, it specifies the ILO standards and Council of Europe Recommendation CM/Rec(2015)5, rather than the Directive. It seems then that there has not been any direct engagement with the substantive EU data protection rules.

Photo credit: Aird and Berlis LLP

The White Paper on the Great Repeal Bill: Invasion of the Parliamentary Control Snatchers

Professor Steve Peers

Yesterday’s White Paper for the forthcoming Great Repeal Bill outlines the key elements of the domestic law aspects of the process of the UK leaving the EU. It indicates broadly how the future proposal for a Bill will do two main things: (a) convert existing EU law applied in the UK to UK law including, in some cases, law of the devolved bodies in Scotland, Wales and Northern Ireland); and (b) provide for a process of amending ex-EU law in future.

While the White Paper has thought some issues through in detail, there are some key points on which it is either vague or unconvincing (or both). In particular, it contains no real detail or substantiated argument on the most important issue: the power of the executive to amend laws without an Act of Parliament.

Converting EU law

The White Paper confirms that the UK will continue to apply EU law until Brexit Day – which will be March 29, 2019, unless (a) the EU/UK withdrawal agreement specifies otherwise, or (b) the EU and UK agree to extend this date, or (c) the UK rescinds its notification to withdraw from the EU (if that is legally possible). It also confirms the intention to remove the European Communities Act – the main Act of Parliament that gives effect to EU membership in UK law – as of that date.

But it seeks to retain in force the EU rules which apply in the UK as of that date, subject to amendments (as discussed below).  The EU rules in question are directly-applicable Regulations and EU Treaty provisions, as well as Directives which were already transposed into UK law by using the European Communities Act. Also, the Treaties will remain relevant for the interpretation of ex-EU legislation which was initially based on them (para 2.10).

What about the EU courts? Here the White Paper draws a distinction. On the one hand, post-Brexit laws will not be subject to the jurisdiction of the EU Court, and the UK’s courts will not be obliged to take ECJ rulings into account (presumably they could choose to do so, however). On the other hand, ex-EU laws will still have to be interpreted by reference to pre-Brexit case law of the EU courts, to ensure certainty. There’s no reference to post-Brexit case law, but again presumably the UK courts could choose to consider it.

The latter rule will not be absolute, however: pre-Brexit ECJ case law will have the same binding effect as UK Supreme Court judgments, and so the Supreme Court could overrule those judgments in the same limited circumstances in which it can (and rarely does) overrule itself. It will of course be possible for Parliament to overturn ECJ case law by amending the legislation, and the government hints that it might want to consider clarifying the circumstances in which the Supreme Court could overturn prior ECJ rulings.

A similar distinction arises as regards the supremacy of EU law: the EU court rule that EU law takes precedence over any conflicting national law, so the latter has to be disapplied by national courts in the event of any conflict. The supremacy rule will not apply to post-Brexit UK legislation, but it will still apply to pre-Brexit UK laws that conflict with ex-EU law.

Despite the general conversion of EU law, the White Paper insists on an exception for the EU Charter of Rights.  In that case, the ex-EU legislation will be interpreted after Brexit by the ‘rights underlying’ the Charter (ie the ECHR and other international treaties which the UK has signed), rather than the Charter itself.

Amending ex-EU law

Obviously the body of ‘ex-EU’ law will not remain unchanged forever. The White Paper discusses the process by which it can be changed in future. There are two key issues here. First, will any changes be the responsibility of the Westminster Parliament or government, or the parliaments and executives of the devolved bodies in Scotland, Wales and Northern Ireland? Secondly, within Westminster, what changes will be subject to Acts of Parliament, and what will be subject to delegated powers conferred upon the executive?

On the first point, the White Paper is vague about exactly what powers will be exercised by the devolved administrations, and this is likely to be a highly contested issue in practice.

On the second point, the distinction between Acts of Parliament and executive powers is important because an Act of Parliament allows for extensive public discussion and parliamentary scrutiny, whereas an act of the executive (usually in the form of 'Statutory Instruments') is subject to limited public or parliamentary involvement. For instance, there is far less time for discussion, and no prospect of tabling amendments.

The White Paper starts by mentioning some possible delegated powers for the Great Repeal Bill that will surely be uncontroversial. For instance, it refers to the references in ex-EU law to 'EU law', powers of the EU institutions, or information sharing with the EU. Since most of these references will be redundant (except possibly as regards continued sharing of police information, as the White Paper notes), there are limited policy choices to be made when replacing them. So there can be little objection in principle to the executive using such powers.

However, there is a further category of changes to EU law which will be more substantive. The White Paper gives a non-exhaustive list of cases where the government thinks it should have delegated powers: where a policy might change in light of the Brexit talks with the EU; where a policy changes as a direct consequence of leaving the EU; and where the level of detail is 'not appropriate' for an Act of Parliament. 

More generally, the government argues that these powers must be widely defined and must apply not only to ex-EU law converted into EU law, but also Acts of Parliament linked to EU membership. The power for the executive to amend Acts of Parliament is controversial, and such clauses are widely known as 'Henry VIII clauses'. Although the House of Lords Constitution Committee had previously argued that there should be extra powers of parliamentary scrutiny in this context, the government implicitly rejects this view. 

Comments

The overall objective of ensuring legal continuity by retaining pre-Brexit EU law in force is logical, and the White Paper has thought many of the details through. It makes sense to ensure that legal continuity as much as possible by creating a distinct body of ex-EU law, where a form of the principle of supremacy still applies and ECJ judgments remain binding, subject to the rare case that the UK Supreme Court might want to overturn.

However, some of the detail has not been considered: what about future ECJ case law? What about cases concerning EU law in the UK pending in the UK courts or the EU courts on Brexit Day? What if a condition of ensuring market access to the EU after Brexit is to take relevant EU court case law ‘into account’? (Note that this falls short of making those judgments binding, and is even an even longer way from retaining the supremacy of EU law over national law). What about the domestic legal impact of any alternative court or dispute settlement system that might rule on UK/EU disputes after Brexit?

The hostility to the EU Charter forms an exception to the rule that prior EU law continues to apply, and raises much legal uncertainty. Does it also mean that ECJ rulings referring to the Charter should be ignored, at least to the extent that they refer to the Charter? Since many such rulings refer to other EU laws and interpret them in light of the Charter, there will in effect be an odd requirement to keep following part of a ruling but not all of it. But this will be like trying to remove an egg from an omelette, because the judicial reasoning on the Charter and the EU legislation is intertwined.  

To some extent, this effect will be limited by the requirement to interpret the ex-EU law in light of the ‘underlying rights’ instead of the Charter. But what does this mean in light of the government’s intention to repeal the Human Rights Act, and replace it with a British Bill of Rights? What if the ECJ’s interpretation of the Charter was arguably more ambitious in a particular case than the relevant ‘underlying rights’ in the Charter? What if the relevant ‘underlying rights’ are set out in a human rights treaty which the UK has not ratified, or not made part of its domestic law? And there is no mention of the pre-Charter case law of the ECJ on human rights as ‘general principles of law’; what happens then?

Moving on to the amendment process, the White Paper’s initial examples of very technical changes to ex-EU laws that the government might wish to make are frankly misleading. For the White Paper then goes on to refer to a non-exhaustive list of broad discretionary powers which the government wants to make changes to the statute book in light of talks with the EU, to make consequential changes to policies or to fill in details of laws.

As drafted, these powers are potentially nearly limitless. They could, for instance, be used to adopt every detail of future policies on agriculture, fisheries, trade with non-EU countries or extradition to the EU without full parliamentary scrutiny or public discussion, because each of these are areas where the new laws could be regarded as changes consequential to leaving the EU. 

So how should Parliament limit government powers? It will be hard to avoid conferring some substantive delegated powers on the government, as the time frame to implement a Brexit agreement with the EU (or the absence of one) before the likely Brexit Day of March 29, 2019 might be tight. On the other hand, there might be several months to spare, or there might be a transitional agreement keeping EU law in force for some time, so giving Parliament more time to act.

The best way forward is to rule certain issues off-limits entirely, particularly issues where EU law provides for essentially domestic legal harmonisation: for instance employment law, environmental law, consumer law, discrimination law. In those areas there is generally no reason why the law necessarily has to change if the UK leaves the EU, because the relevant laws are not usually about cross-border matters. (There are exceptions, like European Works Councils or carbon trading laws).

In other substantive areas, where there is a direct link with leaving the EU, Parliament should be given a right to rule on whether the conditions for conferring delegated powers on the government are met. Effectively it could decide whether the trigger for those powers had to be pulled due to lack of time or not. (Thanks to Professor Tammy Hervey for a version of this idea). There could be particular limits on the power of the executive to amend Acts of Parliament.

Also, the government could be pressed to make more effort to table Acts of Parliament well in advance of Brexit Day on the planned changes to some key areas, for instance agriculture and fisheries, to enable full parliamentary scrutiny. In particular, the planned customs bill could include rules setting out the domestic legal framework for UK’s post-Brexit international trade law (more on that specific issue another time).  

Finally, on the issue of devolved assemblies, it is striking that the Brexit Minister’s foreword to the White Paper talks generally about a “significant increase in the decision-making power” of the devolved bodies, but the actual White Paper then does not give any detail of this. On the other hand it does go into some detail about the powers which can’t be conferred upon devolved assemblies, due to an intention to ensure a UK-wide single market.

Maybe we need a short, simple phrase to refer to the promise of devolved powers which is not then substantiated by any detail. Might I suggest…“the Vow”.

Barnard & Peers: chapter 27

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