When do directives form part of Retained EU Law? Case comment

In this post, Jack Williams of Monckton Chambers discusses the recent case of Harris v Environment Agency [2022] EWHC 2264 (Admin) concerning when directives form part of Retained EU Law pursuant to section 4(2)(b) of the EU (Withdrawal) Act 2018.

By virtue of s 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 s 2(1) of the ECA, 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)’.

The ambiguity of s 4(2)(b)

As I have discussed before, this provision (in particular the ‘of a kind’ wording) is ambiguous. The narrow reading is that a right (etc) arising under a directive is retained only if the specific right in question has been judicially determined to be directly effective prior to IP Completion Day. The broad reading is that the phrase ‘of a kind’ means that rights (etc) arising under directives that would satisfy the criteria for direct effect will be transposed into domestic law as Retained EU Law, irrespective of whether there is a judicial determination to that effect for the particular provision in question.

Why the broad interpretation is preferable

The better view is, in my view, that the broad interpretation of s 4(2)(b) of the EU(W)A (ie provisions in directives that would satisfy the criteria for direct effect are transposed into domestic law as part of Retained EU Law) is correct for three reasons.

First, where a provision of a directive so obviously meets the requirements of the direct effect test, it is unlikely to have been litigated. That means that there will not be a finding for that directive provision by a court prior to the end of the Implementation Period. There may also be no substantively similar right that has been recognised. In circumstances where the overarching rationale of the EU(W)A was (largely) to maintain the status quo by copying the EU Law acquis into domestic law subject to later amendment, there is no sustainable rationale for that provision not being retained, such that it can be relied upon directly if not properly implemented in domestic law. The lack of a case is one of (mis)fortune, rather than reason.

Second, on the narrow interpretation (ie that there must be a case that recognised the specific right (etc) arising under an EU directive as directly effective for that right (etc) to be retained), directives which the United Kingdom has transposed inadequately during its EU membership will be incapable of giving rise to directly effective rights unless there is a precise case on point for the particular provision. That would be so even though, had the United Kingdom properly fulfilled its EU obligations at the time it was an EU Member State, the right would have been implemented and would continue to form part of domestic law pursuant to s 2 of the EU(W)A. The United Kingdom would essentially be benefitting from its own unlawful act.

Third, the narrow interpretation also effectively reads out the phrase ‘of a kind’ from the Act: the effect of s 4(2)(b)  would, it appears, be the same as the narrow interpretation contends for with or without the phrase remaining.

Harris – support for the broad interpretation …

Harris v Environment Agency [2022] EWHC 2264 (Admin) (hereafter, ‘Harris’) provides some judicial support for the broad interpretation of s 4(2)(b) of the EU(W)A.  The Court held that the Environment Agency’s limitation of an investigation into the impact of water abstraction licences to only three sites of special scientific interest breached its obligations under art 6(2) of the Habitats Directive 92/43/EEC to avoid the deterioration of protected habitats and disturbance of protected species. The Court found that, irrespective of regulation 9(3) of the (domestic) Conservation of Habitats and Species Regulations 2017, art 6(2) of the directive formed part of Retained EU Law and thus remained enforceable by the domestic courts: see paras 89 – 94 (NB the references to ‘section 4(3)’ in paragraphs 91 and 93 are presumed typographical errors for ‘section 4(2)’).

In doing so, Johnson J found that section 4(2)(b) ‘does not… require that the particular provision in issue (here article 6(2)) has been held to have direct effect. It only requires that it is “of a kind” that has been held to have direct effect’ (para 91). The Court found that art 6(2) of the directive was of such a kind, as it was similar to art 6(3) of the same directive, which had previously been held to be directly effective (para 91 with reference to C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij).

… but only weak support

Although Harris thus provides express support for the broad interpretation of s 4(2)(b) of the EU(W)A, it may be said to provide only weak authority for that interpretation. That follows because there was, in fact, a domestic case prior to IP Completion Day that had recognised that art 6(2) of the directive had legal effect in domestic proceedings by its binding nature on all public authorities of EU member states and applied it accordingly (paras 92-93 with reference to Natural England v Warren [2019] UKUT 300 (AAC) [2020] PTSR 565).

Although the judge in that earlier case had not expressly stated in terms that art 6(2) was directly effective, that was the effect of her decision, which Johnson J in Harris, in turn, held was sufficient to satisfy the test in s 4(2)(b) (para 93). The earlier comments, as cited above, on the broad interpretation of s 4(2)(b) were therefore not strictly necessary for the judge’s overall conclusion that art 6(2) of the directive formed part of Retained EU Law.

Moreover, other domestic courts appear to have applied the narrow reading implicitly, although it is unclear whether there was any argument on this point: see, for example, G v G [2021] UKSC 9, [2021] 2 WLR 706, paras 84 and 133 per Lord Stephens JSC; and Secretary of State for Work and Pensions & Anor v Hughes & Ors [2021] EWCA Civ 1093, para 15 per Asplin LJ, Green LJ and Elisabeth Lang LJ. The proper interpretation of s 4(2)(b) of the EU(W)A thus remains a live question. For the reasons given above, it is suggested that the broad interpretation is the better one.

If the narrow interpretation is adopted, what about incorrect precedent?

Should, however, the narrow interpretation be adopted, a subsequent question arises: what happens if the (pre-IP Completion Day) case recognising a directive’s provision as directly effective was decided per incuriam? In that circumstance, should the Court (after IP Completion Day) refuse to follow that judgment, and instead find that the relevant directive’s provision is not ‘of a kind’ recognised for the purposes of s 4(2)(b) of the EU(W)A such that it does not form part of Retained EU Law?

Johnson J in Harris answered that question in the negative (para 93). He stated that, unless overturned on appeal or overruled, whether the earlier case was per incuriam or correctly decided ‘is not relevant’ to the test. Instead, he concluded that the test in s 4(2)(b) of the EU(W)A is satisfied once a case before IP Completion Day is identified that recognises the relevant provision as being enforceable in domestic proceedings (regardless of the correctness of that position), since s 4(2)(b) of the EU(W)A expressly states that it is irrelevant whether the recognition is ‘an essential part of the decision in the case’.

The broad interpretation of s 4(2)(b) would, of course, avoid the over-encompassing consequence of this finding (namely that non-directly effective rights (etc) arising under EU directives form part of Retained EU Law, despite not properly forming part of domestic law even during the United Kingdom’s EU membership), since the focus would be on the nature of the directive’s provision in substance, rather than searching for (a correct or not) precedent.

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