In this blog post, Jack Williams of Monckton Chambers comments on C G Fry and Son Ltd v Secretary of State for Levelling Up Housing and Communities [2023] EWHC 1622 (Admin) (“Fry”). The case is relevant for those seeking to determine when provisions of EU directives remain part of domestic law post-Brexit as part of retained EU law.
The topic of when and why EU Directives form part of retained EU law pursuant to section 4 of the EU (Withdrawal) Act 2018 (“EU(W)A”) has been the subject of previous comment on this blog. See here and here. The position can be summarised as follows.
By virtue of section 4 of the EU(W)A, rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP Completion Day, were (i) recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and were (ii) enforced, allowed and followed, continue to be recognised and available in domestic law after IP Completion Day.
Section 4(2)(b), however, provides that rights, powers, liabilities, obligations, restrictions, remedies and procedures which arise under an EU directive do not form part of Retained EU Law if they “are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP completion day (whether or not as an essential part of the decision in the case)”.
As discussed before, the language in section 4 of “of a kind” is ambiguous. A narrow reading is that the “of a kind” formulation goes no further than permitting a litigation to rely upon a right which has specifically been found to be directly effective in a case before IP completion day even though the litigant was not party to the original case. Broader readings of the “of a kind” formulation are that the phrase means rights (etc) arising under directives that would satisfy the criteria for direct effect, or are similar (in drafting or purpose) to a different right (etc) that has previously been found to be directly effective, in each case irrespective of whether there is a judicial determination to that effect for the particular provision in question.
Fry (like Harris v Environment Agency [2022] EWHC 2264 (Admin), which I have discussed before) rejects the narrow interpretation. Paragraphs 49-52 of the judgment are worth citing extensively (emphasis added):
“As we saw, article 6(3) of the Habitats Directive requires that an appropriate assessment should be undertaken before a project is agreed to. In Harris v Environment Agency [2022] EWHC 2264 (Admin) Johnson J applied section 4 of the Withdrawal Act 2018 and held that the Environment Agency had breached article 6(2) of the Habitats Directive by limiting its investigation into the impact of water abstraction licences to only three SSSIs in a special area of conservation (SAC) on the Norfolk Broads. Johnson J held that article 6(2) continued to have direct effect in domestic law because its obligations had been recognised in cases decided prior to Brexit such as Waddenzee: [90], [94].
Mr Banner contended that the Habitats Directive had no status in the UK legal system, except through regulation 9(3) of the Habitats Regulations 2017. The provisions of the European Union (Withdrawal) Act 2018 do not take the argument any further, he submitted, because there is no CJEU pre-existing case law which interprets the Habitats Directive as imposing a requirement to conduct an appropriate assessment at subsequent stages, such as the discharge of conditions on a reserved matters approval. He submitted that Harris concerned whether the claimed obligation under article 6(2) had been recognised by the court before Brexit, and it had. By contrast there is no CJEU or domestic case preceding exit day which supports the view that article 6(3) of the Habitats Directive can be relied upon to impose a requirement for an appropriate assessment at the discharge of conditions stage. Unlike Harris section 4(2)(b) of the Withdrawal Act 2018 is not engaged in this case given the absence of relevant pre-exit case-law.
In my view article 6(3) of the Habitats Directive continues to have effect in domestic law as a result of section 4(2)(b). Johnson J explained in Harris that the requirements of article 6(3) were accepted as binding by the CJEU in Waddenzee: [90]. Articles 6(2) and 6(3) of the Habitats Directive are closely related, so as to be “of a kind” with one another for the purposes of section 4: [91]. The demands of section 4(2)(b) are therefore met. The section is explicit that the recognition in the case law does not have to be by way of the ratio of a case “(whether or not as an essential part of the decision in the case)”.
Consequently, the requirements of article 6(3) of the Habitats Directive remain part of UK law….”
Fry therefore provides further support for a growing judicial consensus that a broader interpretation of section 4(2) of the EU(W)A is correct. This is a positive development. The overarching rationale of the EU(W)A was (largely) to maintain the status quo by copying the EU Law acquis, as it stood, into domestic law subject to later amendment – that should include all directly effective rights regardless of happenstance of whether there was a case or not. Where, for example, a provision of a directive so obviously meets the requirements of the direct effect test, it is unlikely to have been previously litigated. If the narrow interpretation were adopted necessitating a decided case, there would then be a lacuna based on misfortune of there being no decided case rather than any substantive justification. If the United Kingdom had properly implemented its EU law obligations, there would also have been no need to rely upon the directive’s provisions at all, and the right would continue to be part of retained EU law pursuant to section 2 of the EU(W)A. There is thus no basis to be over-willing to exclude improperly- or un-implemented directive provisions in the manner of the narrow interpretation.
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