Conclusions
Transposition of EU law into domestic law
1.The Government says the principle of the Bill is to provide continuity and certainty at the point of the UK’s exit from the European Union. However, the provisions in the Bill responsible for converting and preserving EU law raise a number of significant legal and constitutional questions. There was no consistent view across the evidence we heard as to which laws would be preserved and how they would be treated. Although we support the premise of this Bill in providing for a functioning statute book in the UK once we leave the EU, these ambiguities risk undermining the Bill’s ability to supply legal certainty, a fundamental feature of the rule of law. Government needs to provide more clarity and information on the scope and status of retained EU law, including making clear whether it is to be treated by the courts as primary legislation, so that they cannot rule it to be invalid, or secondary. Greater clarity should also be given to assist judges on exactly how they are to apply CJEU decisions issued after exit day. (Paragraph 19)
2.We welcome the Minister’s clarification that the precautionary principle will be retained in domestic law where it is included in existing legislation, regulations and case law. However we feel that this protection would be enhanced by also including Article 191 of the Treaty of the Functioning of the European Union in the illustrative list of articles referred to in paragraph 89 of the Government’s Explanatory Notes, which lists directly effective rights which would be converted into domestic law as a result of Clause 4. The Government should also consider whether any other principles of EU law should be retained in domestic law. (Paragraph 20)
3.While we note the opportunities that arise out of the UK’s withdrawal from the EU to amend retained EU laws to better reflect the UK regulatory and business environment, there will be areas where it will be in the UK’s interests to keep pace with changes to laws in the EU. While there is no mechanism in the Bill to provide for retained EU law to keep pace with EU laws, the delegated powers in the Trade Bill and the Nuclear Safeguards Bill to modify retained EU law suggest that, at least in some areas, the Government intends to update retained EU law in accordance with post-exit modifications of EU law. The Government should confirm whether this is their intention and whether granting powers in further primary legislation is the approach they will take to achieve this. (Paragraph 27)
4.The Committee heard evidence for and against the Bill’s removal of the Charter of Fundamental Rights from domestic law. The purpose of the Bill is to provide legal certainty for the UK the day after it leaves the EU and not to reshape rights in the UK. It would be helpful if the Government published its memorandum on rights set out in the Charter, as referred to by the Minister, before Clause 5 is considered during the Committee Stage of the Bill. (Paragraph 33)
5.A number of questions have been raised around the appropriateness of the delegation of legislative powers in the Bill. Ensuring that Parliamentary scrutiny of legislative change is not compromised requires Parliament to operate appropriate procedures for the scrutiny of delegated legislation. At the same time, we are mindful of the absolute necessity of ensuring that the estimated 800 to 1,000 statutory instruments are passed before the relevant exit day. The Procedure Committee has published an interim Report on the scrutiny of delegated legislation under the Bill. We commend that Report’s proposals for further consideration by the House during the course of the Committee Stage of the Bill. Whatever method of scrutiny is decided upon by Parliament, it remains the case that uncertainty will only be removed if all the necessary legislative amendments are in place by exit day to ensure that there are no gaps left in the statute book. This will require substantial Parliamentary time and we believe that this must be found even if it results in longer sitting hours or a curtailed Parliamentary recess. (Paragraph 41)
6.The powers in Clause 7 for the Government to transfer regulatory functions from EU institutions to UK regulatory bodies are integral to the Government’s approach to transferring the acquis into UK law. However, the Government must be alive to the consequences of the loss of EU infringement proceedings (and complementary dispute tribunals such as the Appeal Board of the European Chemicals Agency) and the risk of creating an enforcement gap if regulatory functions are transferred to bodies that do not have the resources, expertise or independence to carry them out effectively. Such a risk could result in important protections being lost and the UK’s credibility in negotiating its future regulatory relationship with the EU being undermined. (Paragraph 50)
7.In this respect, the devil will be in the detail of the statutory instruments under Clause 7 that are brought to this House. We note the current provisions that creating a new public authority and transferring functions to a new body require affirmative resolution. However, transferring functions to an existing body could also entail a major policy decision. It is difficult to define on the face of this legislation which decisions will be purely technical and which will require a greater level of scrutiny. This underlines how important it is to ensure that effective procedures are in place to identify which proposals merit further examination in Parliament. As we said in paragraph 41, it is important that the House gets this right and we reiterate our recommendation that the proposals put forward by the Procedure Committee for a new scrutiny committee should be given proper consideration during the Committee Stage of this Bill. (Paragraph 51)
8.It will also be important that the Government publish details of how they will ensure that regulatory agencies in the UK have the resources and enforcement powers to do their job effectively. The relationship between consumers, industry and regulatory agencies not only provides legal redress but also product and standards approval which is vital for buyer confidence and access to markets. It will be important to avoid any unnecessary duplication of regulatory functions or any reduction in confidence in UK products or services. We welcome the Environment Secretary’s commitment to the establishment of a new agency to fill the “governance gap” and to ensure that the UK’s environmental standards and enforcement are as good as or even better than at present. We intend to return to the important question of the UK’s continuing relationship with EU agencies, including seeking clarification from Ministers about how sufficient institutional capacity can be created if and when functions are repatriated. (Paragraph 52)
Devolution
9.Whilst the Government has said that it plans to work with the devolved administrations to reach agreements on UK common frameworks, the devolved administrations have insufficient trust in the process for agreeing these future relationships and have, accordingly, indicated that they will withhold legislative consent from the Bill. The Government must improve engagement with the devolved administrations to resolve this deadlock. It must reach an agreement with the devolved administrations, which might result in changes to the Bill, setting out how and when reserved competencies will be devolved. (Paragraph 77)
10.Our predecessor Committee heard evidence that the JMC (EN) meetings had not been effective from the point of view of the devolved administrations. The future arrangements for the UK after leaving the EU will only be successful if they work for the whole of the UK. This will only be possible if there is mutual trust and cooperative, participative mechanisms for joint working between the UK Government and the devolved administrations. These mechanisms will be required not just to resolve issues relating to the repatriation of EU competencies, but also in the long term to ensure that devolved interests are properly considered when developing new international agreements. (Paragraph 78)
11.We recommend that the JMC (EN) meets much more regularly and that it addresses the concerns expressed by the devolved administrations about the effectiveness of its operations. Government should also set out whether it is considering formal structures for inter-governmental relations, and its proposed arbitration system for disputes, so that the views of the devolved governments can be heard, including in any future trade agreements. (Paragraph 79)
Implementing the withdrawal agreement
12.We welcome the Government’s commitment to introduce a Withdrawal Agreement and Implementation Bill. However, if the Clause 9 powers remain in the European Union (Withdrawal) Bill then they could be used to implement parts of the withdrawal agreement by secondary legislation before the Withdrawal Agreement and Implementation Bill is considered by Parliament. The Government should now justify the purpose of Clause 9 given its announcement that there will be a separate Withdrawal Agreement and Implementation Bill. (Paragraph 85)
13.The Government has proposed that the withdrawal agreement be incorporated fully into UK law as a means to provide greater reassurance and protection for citizens’ rights. We support the position put to us by Ministers that this will be done through separate primary legislation rather than using the powers in this Bill. (Paragraph 91)
14.Identifying mechanisms for enforcing the withdrawal agreement and resolving disputes arising from it will be a central part of the agreement itself. The Government has suggested various alternative dispute resolution mechanisms but should be clearer as to which mechanisms it considers appropriate for which types of dispute. While a continuing role for the CJEU and its case-law cannot be ruled out in areas where there may be continued partnership or convergence of standards and regulations, it is not appropriate that the CJEU would continue to have jurisdiction in the UK to enforce citizens’ rights after the UK has left the EU. This should be done by a body representing both parties to the agreement. (Paragraph 97)
15.Clause 14 as drafted places it within the hands of Ministers to decide which exit day will apply to which provisions in the Bill. This would have implications for when the European Communities Act is repealed, the point at which a snapshot of EU law is taken and transposed into UK law, and when the Henry VIII powers granted to Ministers in this Bill will expire. The flexibility to set multiple exit days was described to us as a tool for setting different commencement dates for different provisions and providing for possible transitional arrangements. The Government’s latest amendments will however, if agreed by the House, remove this flexibility by setting the exit day in the Bill as 29 March 2019 at 11.00 pm. This would create significant difficulties if, as the Secretary of State suggested to us in evidence, the negotiations went down to the 59th minute of the 11th hour. (Paragraph 101)
17 November 2017