​Brexit Britain: confused and out-of-date?

The Bar Council has accused the government of setting up UK citizens for ‘second class status’ through the European Union (Withdrawal) Bill.

It said the Bill, which adopts EU law into UK statute, would create confusion and put the rights of citizens at risk.

Andrew Langdon QC, Chair of the Bar, said: ‘After exit day, UK citizens will find that domestic courts enforce the same laws as they do now, except that they may not be able to apply the underlying treaty provision.

‘This could mean that where the rights of EU and UK citizens are interfered with by the same law, EU citizens would be able to challenge that law, but UK citizens would not. It is a recipe for confusion. Far from bringing rights home, this Bill sets up UK citizens for second class status.’

According to Langdon, UK citizens would have less protection against the state than before since they would no longer be able to challenge EU law brought into UK law on the basis of non-discrimination, proportionality, legal certainty or the right of defence. Instead, legal challenges would be limited to more restrictive English law grounds such as rationality, he said.

He gave the example of hill farmers in Wales, who successfully argued that the Welsh Government’s decision in 2014 to give ten times as much farming aid to lowland farmers as hill farmers was discriminatory. ‘That argument will not work after exit day,’ he said.

On the environment, he warned that the Bill has no mechanism for ensuring the UK keeps pace with international conventions and agreements. Therefore, UK laws could quickly become out-of date. Since there is not yet clarity on the post-Brexit role of the European Court of Justice (CJEU) conflicting case law could emerge on the same legislation, creating confusion for business.

Langdon also warned of the Bill’s impact on devolution and the National Assembly for Wales, as it would give ‘UK ministers the power to amend adopted legislation that falls within the devolved competence of the National Assembly, without being answerable to the Assembly or requiring that the Assembly pass a legislative consent motion.

‘A number of the Bill’s provisions give ministers in Westminster powers which, if exercised, could undermine the Sewel Convention and threaten the stability of our devolved constitutional arrangements and the legitimacy of the Welsh Assembly,’ he said.