In this post, Jack Williams of Monckton Chambers discusses recent case law confirming that general principles form part of retained EU law (and how they do so), and explains how general principles can be used as part of both retained EU law (for facts and matters arising after to IP completion day) and accrued EU law (for facts and matters arising prior to IP completion day).
General principles form part of retained EU law
General principles are retained EU Law by virtue of section 4 of the EU (Withdrawal) Act 2018 (“EU(W)A”), as read with section 6 and schedule 1 to that Act:
- Section 4(1) of the EU(W)A states that ‘rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP completion day (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and (b) are enforced, allowed and followed accordingly, continue on and after IP completion day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).’ This applies to general principles of EU law since they were treated as having arose by or under the EU Treaties for the purposes of section 2(1) of the ECA 1972 and thus were recognised and available in domestic law during the United Kingdom’s membership of the European Union.
- Section 6(7) of the EU(W)A defines ‘retained general principles of EU Law’ as the general principles of EU Law as they had effect in EU Law immediately before IP Completion day, so far as they relate to anything to which ss 2, 3 or 4 of the EU(W)A applies and are not excluded by section 5 of or Schedule 1 to the EU(W)A (a caveat that appears in section 4(3), also). Paragraph 2 of Schedule 1 to the EU(W)A (which is given effect by section 5(6) of that Act) provides that no general principle of EU Law is part of domestic law on or after IP Completion day if it was not recognised as a general principle of EU Law by the CJEU in a case decided before IP Completion day (whether or not as an essential part of the decision in the case). The principle of supremacy is also excluded by section 5(1) of the EU(W)A. Section 5(5) makes clear that, despite the non-retention of the Charter, general principles which exist irrespective of the Charter are nonetheless retained.
Lord Justice Green in Lipton and anor v BA City Flyer Ltd [2021] EWCA Civ 454 (“Lipton”) at [64] confirmed that general principles form part of retained EU law. His route for this conclusion was, however, different from the above (i.e. section 4) route. He suggested (obiter) that general principles of EU law were made part of domestic law by virtue of paragraph 2 of schedule 1 to the EU(W)A. As HHJ Keyser correctly observed in Adferiad Recovery Ltd v Aneurin Bevan University Health Board [2021] EWHC 3049 (TCC) (“Adferiad”) at [117], however, that paragraph (as discussed above) merely provides that general principles of EU law will not be part of domestic law on or after IP completion day unless recognised as such by the CJEU prior to that date.
As my colleagues, Ben Rayment and Harry Gillow, have discussed, whilst HHJ Keyser was correct about schedule 1 to the EU(W)A, he was, with respect, wrong to go on to find that general principles themselves could not amount to retained EU law ([116]-[120]). This proposition has been confirmed recently by Eady J (President of the EAT) in Secretary of State for Work and Pensions v Beattie & Ors [2022] EAT 163 (“Beattie”) who, instead, correctly at [135] applies the reasoning that I set out above in relation to section 4 of the EU(W)A:
‘Returning to section 4 of the Withdrawal Act, it becomes apparent that it is necessary to have close regard to section 2(1) of the ECA: the “rights, powers, liabilities, obligations, remedies and procedures” retained in domestic law under section 4 are defined in terms of the rights that were recognised and available under section 2(1) of the ECA. In turn, section 2(1) ECA made clear that all “rights, powers, liabilities, obligations, remedies and procedures … created or arising by or under the Treaties …, as in accordance with the Treaties are without further enactment to be given legal effect or used in the UK” were to be recognised and available in UK domestic law. The assumption made in Adferiad would appear to be that this could not include general principles of EU law. That approach would, however, fail to engage with the way in which the general principles of EU law have been treated as rights under the EU Charter, recognised as having the same legal effect as EU treaties, and with the way those principles have clearly been treated as giving rise to directly enforceable rights in UK domestic law.’
The better view, therefore, is that general principles do form part of retained EU law and do so pursuant to section 4 of the EU(W)A.
How can general principles be used?
The answer to this question depends on whether the applicable law is, on proper analysis, retained EU law, or accrued EU law. I have discussed the distinction at length here, but in essence the answer hinges on whether the underlying facts being considered took place before or after IP completion day. If the facts are after IP completion day, then retained EU law applies. If the facts are before IP completion day, retained EU law does not apply. Retained EU law is a new body of domestic law that came into force from IP completion day onwards (unless there is explicit provision giving it retrospective effect, but that is not the default or general position under the EU(W)A).
General principles can be relied upon as an interpretative device for retained EU law
By virtue of section 6(3) of EU(W)A, any question as to the meaning or effect of retained EU law is to be decided in accordance with any ‘retained case law’ (whether of the CJEU or the domestic courts) and any ‘retained general principles of EU law’ (general principles of EU law existing as at 31 December 2020) so far as they relate to retained EU law that is preserved in domestic law by the EU(W)A and is not otherwise excluded. Accordingly ‘retained general principles of EU law’ constitute interpretative rules for retained EU law.
For new facts and matters arising on or after IP Completion day, there is no right of action in domestic law based on a failure to comply with any of the general principles of EU law: paragraph 3(1) of Schedule 1 to the EU(W)A. Moreover, no court, tribunal or other public authority may, on or after IP Completion day, disapply or quash any enactment or rule of law, or quash any conduct or otherwise decide that it is unlawful on the basis that it is incompatible with any of the general principles of EU Law: paragraph 3(2) of Schedule 1 to the EU(W)A.
Therefore, generally, general principles are relevant only as an interpretative device in respect of retained EU law.
In the context of cases applying retained EU law, general principles might, potentially, nonetheless still have more force than merely as interpretative devices.
The exclusion in paragraph 3(2) of Schedule 1 to the EU(W) does not apply in relation to any decision of a court, tribunal or public authority after IP Completion day ‘which is a necessary consequence of’ any decision of a court or tribunal made before IP Completion day: see paragraph 39(2) and (6) of Schedule 8 to the EU(W)A. The effect of this is potentially (subject to the interaction of paragraphs 3(1) and (2) of schedule 1 and the missing reference to the former in paragraph 39 of schedule 8) to revive general principles as an enforcement tool for some purposes, since, where there is an applicable retained case which applies a general principle of EU law, a court in a post IP Completion day case will not be bound by the general principle to disapply or quash all domestic conduct or law, but will still be bound by the retained case regarding any question ‘as to the validity meaning or effect’ of any retained EU law: section 6(3) of the EU(W)A, read with paragraph 39(2) and (6) of schedule 8 to the EU(W)A.
General principles can still be enforced in relation to breaches of accrued EU law
General principles also form part of domestic law as accrued EU law rights. This is pursuant to section 2(1) of the ECA for matters up to exit day, and to sections 1A and 1B of the EU(W)A for matters arising in the transition / implementation period (i.e. between exit day and IP completion day).
General principles can still be enforced in relation to breaches of accrued EU law i.e. in relation to facts and matters arising before IP completion day. This is the effect of paragraph 39 of schedule 8 to the EU(W)A:
- Paragraph 39(3) states that the initial removal of right of action for failure to comply with general principles and remedies for incompatibility with general principles of law (paragraph 3 of schedule 1 to the EU(W)A) does not apply in relation to any proceedings begun, but not finally decided, before a court or tribunal in the United Kingdom before IP completion day.
- Paragraph 39(4) states that the removals in paragraph 3 of schedule 1 do not apply in relation to any conduct which occurred before IP completion day which gives rise to any criminal liability.
- Paragraph 39(5) states that the removals in paragraph 3 of schedule 1 do not apply in relation to any proceedings begun within the period of three years beginning with IP completion day so far as:
‘(a)the proceedings involve a challenge to anything which occurred before IP completion day, and
(b)the challenge is not for the disapplication or quashing of (i)an Act of Parliament or a rule of law which is not an enactment, or (ii)any enactment, or anything else, not falling within sub-paragraph (i) which, as a result of anything falling within that sub-paragraph, could not have been different or which gives effect to, or enforces, anything falling within that sub-paragraph.’
Whilst these provisions are contained in the EU(W)A, there are not about retained EU law, since they all concern situations when the underlying facts and matters occurred before IP completion day i.e. it is accrued EU law rights that are the subject of the litigation.
It does not matter for this analysis whether and, if so how, general principles form part of retained EU, or how they can be used as a matter of retained EU law for facts and matters necessarily arising after IP completion day. That is all irrelevant in this context. The relevant question is only whether anything in the EU(W)A (or any other Brexit-related legislation) removes or alters the default position under section 16 of the Interpretation Act 1978 to the effect that repeal of legislation only operates prospectively, not retrospectively. (For discussion of the detail on this point, see here). Within the confines of the provisions of paragraph 39(8) of schedule 8 to the EU(W)A (in particular that the right to bring a claim is reduced to three years, and certain instruments or conduct cannot be disapplied or quashed), there is nothing in the EU(W)A which removes rights pursuant general principles from the rights accrued and thus enforceable even after IP completion day in relation to breaches that happened before.
In sum, general principles of EU law thus remain enforceable in post-IP completion day cases for facts and matters arising beforehand (subject to limitation rules for how long these cases can be brought, including the reduction in time in paragraph 39(5) of schedule 8 to the EU(W)A).
Two cases show this operating in practice.
The first is Beattie. There, the Employment Appeal Tribunal has held that certain claimants who sought the disapplication of the Equality Act (Age Exceptions for Pension Schemes) Order 2010, on the basis that it was incompatible with the general EU law principle of non-discrimination, could succeed with their claims because they were brought in November 2019 (prior to IP completion day). This was on the basis of paragraph 39(3) of schedule 8 to the EU(W)A, as discussed above. See [139]. Others who brought their claims on 9 August 2021 (after IP completion day) were unsuccessful, however: whilst paragraph 39(5) of schedule 8 to the EU(W)A reserves the accrued rights based on general principles and enables claims to be brought within three years of IP completion day (i.e. until 31 December 2023), such a claim cannot challenge an Act of Parliament or any enactment which, as a result of an Act of Parliament, could not have been different or which gives effect to, or enforces, an Act of Parliament, which their challenge to the 2010 Order impermissibly did. See [140].
My only quibble with this decision is that the learned judge reached this (wholly correct) conclusion on the basis that ‘their claims are brought under EU retained law’ ([139]). As discussed above, retained EU law is inapplicable here. The underlying facts and matters which were being litigated all took place well before IP completion day (and indeed exit day). The Tribunal did not in fact need to consider whether general principles were retained EU law, or how. All it needed to do was consider whether the accrued rights could be enforced, or if anything in the EU(W)A or other legislation retrospectively altered the default position under section 16 of the Interpretation Act 1978. It did not for the first group, but did for the second group: paragraph 39(3) of schedule 8 permitted the first group’s claims (which does not have the same conditions as those in 39(5) of schedule 8), but did not permit a remedy for the second group’s identical claim due to the terms of 39(5).
The second case is Jersey Choice Limited v Her Majesty’s Treasury [2021] EWCA Civ 1941 (“Jersey Choice”).In that case, the Court of Appeal was concerned with a Francovich damages claim, founded upon what was said to have been the failure of the UK to properly implement an EU directive. The claim could only succeed on the basis that there had been a breach of general principles of EU law. The proceedings had commenced prior to IP completion day. The Court of Appeal held that the UK’s withdrawal from the EU did not impact upon the claimant’s “right to pursue its damages claim, its reliance upon its rights under the EU Charter and/or its reliance upon rights under general principles of EU law” ([25]). Quite correctly, Green LJ noted at [22]-[23] that the EU(W)A excluded certain rights and remedies in connection to matters occurring before IP completion day (as well as exclusions from retained EU law for matters occurring after IP completion day), but that:
‘the removal of a right of action relating to general principles of EU law does not apply to any proceedings commenced within the period of 3 years beginning with IP completion day insofar as the proceedings involved a challenge to acts occurring before IP completion day and the challenge was not for the disapplication or quashing of an Act of Parliament or a rule of law which was not an enactment or certain other specified laws (see section 23(7) and Schedule 8 paragraph 39(5)). And further the removal of the right to Francovich damages does not apply to proceedings commenced within the period of 2 years starting with IP completion day insofar as the proceedings relate to anything which occurred before IP completion day (section 23(7) and Schedule 8 paragraph 39(7)).’
Again, despite the correct conclusions, my only quibble is analysing the matter through the prism of retained EU law, where, at [24], the Court asserts that ‘[r]ights which were saved under this somewhat convoluted regime form part of the body of retained EU case law and retained general principles of EU law’. That is correct as a general proposition, but irrelevant to the matter in hand (incorrect implementation of a directive during the time when EU law ‘proper’ applied and was allegedly breached). The proper analysis applies accrued EU rights to this situation regardless of whether they were then subsequently retained and modified, or not as part of retained EU law). The same underlying norm can form part of accrued EU law rights and retained EU law. But the applicable law depends on the time of the events under consideration, as explained above. There is no need to apply the latter (retrospectively) – as discussed before, that error, originating in Lipton and subsequently applied in Varano v Air Canada [2021] EWHC 1336 (QB), can lead to perverse and unintended consequences.
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