Niall O’Connor
Brexit and Rights Engagement Network
It might be thought that Brexit would have very little impact on the interpretation of domestic rights. Surely, post-Brexit, British judges will continue to interpret British law as they always have done? The reality may not be so simple. First, there has long been interaction between courts in the UK and the Court of Justice of the European Union (CJEU) which may have influenced domestic approaches to interpretation. Second, it is not at all clear what is meant by a ‘domestic’ right. The reality is that EU law and UK law enjoy a complex relationship. Third, the EU Withdrawal Act 2018 explicitly incorporates aspects of EU law into the domestic legal order. Finally, the impact of Brexit on the interpretation of rights will be heavily conditioned by the source of those rights.
UK Supreme Court, Diamond, CC BY-NC-ND 2.0
The Source of ‘Rights’
The impact of Brexit on the interpretation of domestic rights will largely depend on where those rights come from. EU law has little, if any, influence over the interpretation of purely domestic rights, such as the common law and domestic legislation falling outside the scope of EU law. The interpretation of rights deriving from international sources such as the European Convention on Human Rights (ECHR) which are reflected in the Human Rights Act 1998 (HRA) are also unlikely to be affected by Brexit.
The rights sources with the closest connection to EU law and, thereby, the most likely to be affected by Brexit are the EU treaties, the EU Charter of Fundamental Rights and EU legislation (including implementing legislation). It is clear, then, that there are various sources of rights found in the UK. What is not clear is the extent to which these varying sources can be described as ‘domestic’.
The Meaning of ‘Domestic’
As we have seen, some sources of rights in the UK might be described as wholly domestic, while others are more closely connected to EU or international sources. There is no hard and fast distinction between the ‘domestic’ and the ‘international’ or ‘European’. Nevertheless, at least in the human rights field, judges appear to be increasingly aware of public scepticism or indeed hostility to international sources of rights.
This has led to increased reliance by the British courts on the common law as a ‘domestic’ source of rights in preference to international rights sources. For example, in the UNISON case, the Supreme Court relied heavily on the right to access justice in common law, rather than relying exclusively on the equivalent concepts found in the ECHR or the EU Charter. Although, on its face, this is an example of the courts eschewing the international for the domestic, this may be to overlook that the international has already been ‘internalised’ – international norms influencing the interpretation and development of domestic norms.
In the case of EU law, this internalisation is even stronger, with the European Communities Act 1972 requiring UK courts to apply EU law ‘as national law’. Therefore, even prior to Brexit, it is misleading to draw a hard distinction between the domestic and the European. In any case, the Withdrawal Act removes any uncertainty surrounding the domestic nature of EU norms. The Act explicitly domesticates (at least some of) the EU rights found in the treaties and legislation. It does not include the EU Charter, which will no longer apply post-Brexit. Having set out the nature of the rights likely to be affected by Brexit, we can turn to the issue of their interpretation.
Types of Interpretation
A legal text may need to be interpreted for a number of reasons, such as linguistic uncertainty, vagueness, imprecision or gaps in the law. Various interpretative techniques can be used to elucidate the meaning of a legal provision. The first approach is to employ linguistic criteria. Under this approach, we can look at the language of the text to uncover the proper meaning of the words. This is also known as the literal approach, and it is this approach which is most often adopted by the British courts.
The next approach is contextual. This takes account of the normative context in which a provision is found. In other words, we can look to related sources or texts to uncover the meaning. The third approach is dynamic. This takes account of the objectives of a text. Closely related to this notion is the idea of effectiveness. This means that a legal provision should be interpreted in such a manner that best gives effect to its objectives. This latter purposive or teleological approach is frequently adopted by the CJEU in its interpretation of EU law.
The Interpretation of EU Law
There are a number of peculiarities of EU law that lead to different approaches to interpretation. First, the workings of the CJEU are heavily influenced by the French legal system and the French language. Second, there are 24 official languages of the EU, with each language version of a piece of legislation being equally authentic. Third, EU law uses terminology that is not found at national level or, if it is, may have a different meaning. Fourth, EU law is often drafted in very general terms, leaving it to the Member States to flesh out the relevant provisions. Finally, the CJEU is not like most national courts. The CJEU has a clear role to play in assisting the attainment of the treaties’ objectives.
For these reasons, a literal approach to interpretation is often not possible or desirable. As a result, the CJEU has tended to resort to purposive or teleological approaches to interpretation. In the seminal case of van Gend en Loos, the CJEU held that when interpreting the EU treaties, ‘it is necessary to consider the spirit, the general scheme and the wording’. The CJEU adopts the same purposive approach when it comes to interpreting EU legislation, with the recitals to legislation being used as a guide to interpretation.
Taking the example from EU employment law – the Working Time Directive (WTD) – we can see this purposive approach in action. The recitals to the directive show that it has a worker-protective purpose: ‘the improvement of workers’ safety, hygiene and health (…) is an objective which should not be subordinated to purely economic considerations’. As a result, the CJEU has consistently held, as in Jäger, that concepts such as ‘working time’ and ‘paid annual leave’ found in the WTD ‘constitute concepts of [Union] law which must be defined in accordance with the objective characteristics by reference to the scheme and purpose of [the legislation]’.
The CJEU has also long used fundamental rights to bolster its approach to interpretation. This is because EU legislation must be interpreted in accordance with the treaties, charter and general principles. In Stauder, the CJEU first recognised that fundamental rights are general principles of EU law which are in turn inspired by national constitutional rights and international sources such as the ECHR. The EU also has its own fundamental rights text in the form of the Charter, which is now also used as a tool of interpretation.
For example, in ANGED, the CJEU held that not only was the concept of paid leave important, but that it is now also ‘expressly laid down in Article 31(2) of the Charter’ which reinforces the CJEU’s traditional employee-friendly interpretation of the WTD. EU employment legislation usually takes the form a directive which will require further implementation into national law. Domestic courts have responsibility for interpreting such legislation, which can be described as falling ‘within the scope’ of EU law.
The Interpretation of Domestic Rights Falling within the Scope of EU Law
We have already seen that, when it interprets EU legislation, the CJEU adopts an approach that respects the purpose of the legislation. It must also ensure that any interpretation complies with the treaties and EU fundamental rights. When national law falls within the scope of EU law, Member State courts are also required to adopt a purposive or results-oriented approach to ensure that domestic law is interpreted consistently with EU legislation, the treaties, the charter and the general principles.
Domestic law falls within the scope of EU law when a national measure implements EU law or when a national measure derogates from EU law. An example of the former is the UK’s Working Time Regulations (WTR), which implements the WTD into UK law. Currently, the ability of UK courts to interpret those regulations is constrained by the fact that they must be interpreted consistently with EU law and that the CJEU has competence to review the compatibility of the WTR with EU law, although it does not have the competence to interpret national law itself.
In reality, the national courts are involved in a double interpretative process here. They will need first to interpret the relevant EU law (although the CJEU remains the ultimate arbiter), before then attempting to interpret domestic law in light of those EU rules. This interpretative obligation on the domestic courts is strong, with national courts being required ‘as far as possible’ to interpret domestic law in accordance with EU law (von Colson). The only limitation on the national court’s interpretative duty is that it cannot adopt an interpretation that would be contra legem – an interpretation that clearly flies in the face of the wording of the legislation.
Otherwise, the national court is required to deploy all of the domestic interpretative methods available to it, leading to what one judge described as a ‘highly muscular approach’ to interpretation. If a national court has doubts as to the correct interpretation of EU law, it should refer a preliminary question to the CJEU, which can give a definitive interpretation that should then be applied by the national court. Outside the scope of EU law, national courts are entirely free to interpret domestic law using their own interpretative criteria.
The Interpretation of Domestic Rights Falling outside the Scope of EU Law
In contrast to the purposive approach adopted by the CJEU, courts in the UK tend to focus much more on literal approaches to interpretation. The purposive approach adopted by the CJEU is also seen as inappropriate in a UK context, given that British legislation is usually much more precisely drafted than its EU equivalent. UK courts will usually not depart from a literal approach to interpretation unless the wording of the legislation is vague or ambiguous. In such a scenario, the domestic courts can have some recourse to the intention of Parliament in uncovering the aims of the legislation (Pepper v Hart).
If we again look to the employment law context, the reluctance of British judges to adopt a purposive approach to interpretation has, at times, had the consequence of denying a worker-protective reading of that legislation. Anderman has further identified a tendency for UK judges to exaggerate common law contractual tests when applied to employee-protective legislation.
The Interpretation of Domesticated EU Rights Post-Brexit
The Withdrawal Act seeks to ‘domesticate’ the existing EU law acquis into UK law on exit day. Clause 2 of the Act deals with EU-derived domestic legislation (such as the WTR). Clause 3 governs other non-domestically implemented EU legislation (such as regulations), while Clause 4 covers directly effective EU law not captured by clauses 2 and 3.
Outside of the scope of this ‘retained’ EU law, UK courts can continue to interpret domestic rights in the same non-purposive manner they have adopted until now, but it will now also fall on the UK courts to take on the full range of tasks associated with the interpretation of (former) EU legislation. Within the scope of this retained EU law, the interpretative obligations on national courts are not so clear-cut.
Clause 6 of the Withdrawal Act deals expressly with the issue of the interpretation of retained EU law. Clause 6(3) provides that national courts should interpret retained EU law in accordance with the CJEU’s case law as it existed on exit day. Explanatory notes attached to the original bill suggest that the CJEU’s purposive approach to interpretation should also apply to retained EU law. At least for the foreseeable future, domestic legislation implementing EU rights, for example the WTR, should be given the same interpretation that it has had until now.
With Clause 6(1), the domestic courts become the sole interpreters of legislation in the UK, with the CJEU having no role to play in the interpretation of retained EU law, save to the extent that Clause 6(2) permits the courts to have regard to future CJEU case law if it ‘considers it appropriate’. Under Clause 6(5), the Supreme Court will also have the power to depart from previous CJEU decisions when it considers it ‘right to do so’.
Referring a question to the CJEU concerning the interpretation of (retained) EU law will no longer be possible. In addition, Clause 5(4) explicitly excludes the EU Charter from domestic law, thereby excluding its future use as a tool of interpretation. Although as we saw, the Charter has already been used to interpret EU legislation. In any case, the Withdrawal Act preserves the interpretative role of fundamental rights as general principles of EU law. Some general principles, such as equality, have the potential to continue to act as strong interpretative standards.
Conclusion
If the main purpose of the Withdrawal Act is to ensure continuity, then at least in the interpretative field, its success is somewhat mixed. The instruction in Clause 6 that retained EU law should be interpreted consistently with the CJEU’s case law (including its purposive approach to interpreting legislation) is to be welcomed. This development is then somewhat tempered by the fact that the Act permits the domestic courts to depart from the case law of the CJEU and also the removes the interpretative functions of the Charter.
Is it also likely that the purposive approach to interpretation will be lost overtime? Perhaps not. British courts have long looked to other jurisdictions, usually common law jurisdictions, to shed light on domestic rights. This comparative approach will no doubt continue post-Brexit, with decisions of the CJEU now thrown into the mix. A far more urgent and indeed likely threat to domestic rights post-Brexit is the removal of EU law form the hierarchy of norms, thereby allowing the UK legislature to dilute or remove rights currently found in EU legislation.
Niall O’Connor
University of Essex
Niall O’Connor is Lecturer in Law at the University of Essex and PhD Candidate in Law University of Cambridge. His research interests include European Union law, fundamental rights and employment law and policy.
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