On 29 January the House of Lords Constitution Committee delivered a withering assessment of the EU (Withdrawal) Bill, describing it as ‘fundamentally flawed from a constitutional perspective in multiple ways’. Alongside trenchant criticisms of the delegated powers in the Bill, and the effects for the devolution settlement, the Committee’s Report focuses on the definition and status of ‘retained EU law’.
The aim of this short post is to explore some of the implications of the Committee’s approach to this vexed question. If, as the Committee recommends, ‘retained EU law’ is defined narrowly, it will have the virtue of restricting the scope of the Henry VIII Henpowers in clause 7, which only apply to operational problems and deficiencies in relation to ‘retained EU law’. But a narrow definition gives rise to problems elsewhere. ‘Retained EU law’ is also the definition used for the purpose of the continuing application of existing CJEU case law and retained general principles of EU law under clause 6. Questions as to the validity, meaning and effect of pre-Brexit UK law which is not ‘retained EU law’ are therefore excluded from these interpretative provisions. In the Bill as worded, it is not clear if this difficulty is resolved by the operation of the principle of supremacy of EU law referred to in clause 5, the meaning and effect of which is very opaque. The Committee recommends that the principle of the supremacy of EU law be abandoned altogether; but if its approach were to be followed, there would be no EU principles which would apply to any law currently in the field of EU law which is not ‘retained EU law’. The implications are assessed by reference to the Equality Act 2010 (EqA). Continue reading →
The key words in the recent White Paper,Legislating for the United Kingdom’s Withdrawal from the European Union, are ‘certainty’ and ‘clarity’ in the interests of a ‘smooth and orderly Brexit’, repeated in the forewords and the text. To that end, the envisaged Great Repeal Bill (GRB) will initially convert the existing acquis of EU law into domestic law, including directly effective EU laws, such as Article 157 of the TFEU on equal pay. Also in order ‘to maximise certainty’ the meaning of EU-derived law will be determined ‘by reference to’ – note the vague words – the case law of the Court of Justice (ECJ) existing on the date of Brexit. This means, the White Paper happily explains in a user-friendly example in a shaded box, that workers’ rights will ‘continue to be available’ after Brexit, giving ‘certainty to service providers and users, as well as employees and employers’. In this way the GRB will apparently deliver on the Prime Minister’s promise in October last year that workers’ rights ‘will continue to be guaranteed in law’ post-Brexit.
Despite being thin on the detail of the GRB, so far all appears so good. But scratch the surface and things are not so simple underneath. Continue reading →
My most recent edited collection has now been published:
GS Ølykke & A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar, 2016). It features contributions from a gender-balanced group of 16 young political science and EU economic law scholars based in 9 different EU/EEA Member States, including a number based at top UK universities. It is the result of a two year research project generously funded by the Copenhagen Business School and the Danish Gangstedfonden.
Using an innovative interdisciplinary ‘law and political science’ methodology, the book carries out a critical assessment of the reform of the EU public procurement rules in the period 2011-2014. It does this by a detailed assessment of the initial Commission proposal for new rules, the travaux preparatoires behind it, as well as the several inter-institutional negotiation and compromise texts that resulted in the 5th generation of EU public procurement directives in 2014. Continue reading →
In the Laval case (C-341/05), the capacity for minimum wages (and other work-related benefits) to be set for posted workers by collective bargaining by trade unions in the host State was cast into doubt. Collective bargaining (and the collective action that generated such bargaining) was considered to be too unpredictable in terms of effect and outcome, creating an unjustifiable barrier for the free movement of service providers. It was only in the case of ‘social dumping’, a nebulous term of uncertain reach, that collective action aimed at conclusion of a collective agreement could be permitted in respect of a particular group of posted workers. Instead, the Court relied on Article 3(1) of the Posting of Workers Directive 96/71/EC (PWD), which envisages only the setting of minimum standards in relation to certain matters. This may be done by ‘law, regulation or administrative provision’ but also by ‘collective agreements or arbitration awards which have been declared universally applicable…’ in accordance with Article 3(8) insofar as they concern’ activities listed in the Annex largely pertaining to the construction industry. EU States may also take the option to give such legal effect to universally applicable collective agreements in other sectors in accordance with Article 3(10). Through this prescriptive treatment of the appropriate limits of collective bargaining, what had been seen by some as a ‘floor of rights’ in PWD came to be a ‘ceiling’. If the national measures taken in respect of protection of the rights of posted workers did not fit within the ambit of the precise terms set out in the PWD, then they were impermissible, despite the apparent scope in Article 3(7) for a more generous interpretation of the Directive ‘more favourable to workers’. Continue reading →