2The Bill’s provisions for amendment of legislation
7.The European Union (Withdrawal) Bill “ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands at the moment of exit into domestic law. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Bill also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU.”.4
8.The memorandum from the Clerk of the House sets out succinctly how this purpose is to be achieved:
- Clause 2 provides that all EU law, which has been implemented in the UK through UK domestic legislation under the provisions of the 1972 Act, shall continue to be law after exit day.
- Clause 3 provides that all directly-applicable EU legislation, currently in force in the UK, shall also continue to be law after exit day.
- Clause 4 provides that all rights, powers, liabilities, obligations and restrictions, which arise from EU Treaties and are recognised and available in UK domestic law, shall continue to be recognised and available after exit day.
- Everything covered by clauses 2, 3 and 4 is defined, for the purposes of the remainder of the Bill, as retained EU law.5
“Retained EU law” is defined by the Government as the body of EU legislation with direct effect which has been converted into UK law, and the body of preserved domestic law formerly given effect in the UK under the European Communities Act 1972.
9.The regulation-making powers in the Bill relate principally to three separate (although closely linked) areas:
- Correcting deficiencies in retained EU law (clause 7)
- Complying with international obligations (clause 8)
- Implementing the withdrawal agreement (clause 9).
In all three cases the powers include the power to make any provision which could be made by an act of parliament, which includes the power to amend or repeal primary legislation.
10.The parliamentary procedures to which the regulations would be subject are set out in Schedule 7 to the Bill. They provide that all regulations may be subject to the negative procedure unless they:
- create a public authority, or transfer the functions of any EU authority or entity to a UK public authority;
- impose or relate to a fee for a function undertaken by a public authority;
- create or widen the scope of a criminal offence; or
- create or amend a power to legislate.
All instruments falling within the categories above are to be subject to the affirmative procedure. Ministers have the discretion to designate any instrument falling outside the categories above as subject to the affirmative procedure, though the default is that the negative procedure will apply to these instruments.
11.Both the affirmative and the negative procedures are established by statute in the Statutory Instruments Act 1946. These procedures provide for parliamentary control of delegated legislation as follows:
- Under the affirmative procedure an instrument is laid before both Houses in draft form. The draft is unamendable. If both Houses approve it (by a motion agreed to on the floor of each Chamber), the Minister may ‘make’ (in other words enact, and then bring into force) the instrument in the form of the draft.
- Under the negative procedure, the Minister lays the instrument in its final form: by then it has typically been ‘made’ or signed into law. The Minister may bring the instrument into force on any date from that of its laying, although by convention (rather than statute) a period of at least 21 days is normally provided. It remains on the statute book unless either House, within 40 days of its laying date, resolves that it should be annulled. Periods of dissolution, prorogation and adjournment of more than four days are not included in the calculation of the 40 days.
- A variant on the affirmative procedure provides for an instrument to be made and brought into force immediately, but to continue in force only if approved by resolution of both Houses within a defined period of time. In the European Union (Withdrawal) Bill this period is set at one month from the date of laying, not including periods of dissolution, prorogation and adjournment of more than four days.6
The Clerk of the House indicated to us that while there were a number of variations on, or alternatives to, these procedures (established under acts other than the 1946 Act), these procedures account for the substantial majority of statutory instruments laid before the House, and govern the principal regulation-making powers in the Bill.7
Use of the powers in the Bill
12.The Government has given certain assurances about the purpose of the powers in the Bill and how they are intended to be used.8 The Government claims that their use is to be restricted to the overall objective of ensuring that the legal framework in operation the day before exit day, based as it is on the operation of the European Communities Act 1972, is able to operate effectively immediately after the point of exit when the 1972 Act has been repealed.
13.We note the considerable concern which has been expressed in the House and elsewhere about the scale and scope of the powers. The Bill’s provision in this respect has been subject to criticism by two House of Lords committees and by several of our witnesses.9 Rt Hon Dominic Grieve QC MP, a former Attorney-General, suggested to us that the Government was likely to be uncertain over the extent to which the powers claimed would have to be used:
[…] I very much hope, particularly in the light of what the Government [has] said, that 90% of all this, perhaps even 95% for all I know, turns out just to be straightforward technical amendment. The Government must have some anxiety and doubt about this because if it did not it would not have had to have cast its powers so widely. That suggests to me that within Government there is an understanding that there are unpredictable aspects to this legislation, which could require at different moments the Government to bring about significant change to existing primary legislation in order to achieve its objectives.10
14.The scale and scope of the powers to be conferred, and in particular the powers to amend primary and secondary legislation, merit the most serious consideration by the House. We do not in this report make express recommendations about the powers claimed by the Government. We acknowledge that the Government, in order to achieve the objective of legal certainty on exit day, must be able to amend existing legislation without using the primary legislative process. The use of such so-called ‘Henry VIII’ powers is required to amend existing acts of parliament which incorporate ‘a degree of EU influence’. The House of Commons Library has estimated that there were 186 acts of parliament passed between 1980 and 2009 in this category and a further 105 such acts between 2010 and 2014.11 Without any ‘Henry VIII’ powers to amend primary legislation, all the necessary modifications to those acts of parliament with ‘EU influence’ would have to be in primary legislation. The scope of the powers delegated from Parliament, and their exercise, must nevertheless be subject to thorough scrutiny by Parliament.
15.In the case of the present Bill, therefore, we draw to the special attention of the House the report on the European Union (Withdrawal) Bill made by the Delegated Powers and Regulatory Reform Committee of the House of Lords, the committee of Parliament which specialises in the scrutiny and control of Government proposals for the delegation of powers in legislation.12 The views of this committee—which has, exceptionally, reported on the Bill before it has entered the Lords—merit the attention of the whole House.
4 Explanatory Notes to Bill 5-EN of Session 2017–19
6 Schedule 1 to the Interpretation Act 1978 provides that, unless there is provision to the contrary, ‘one month’ in legislation is taken to mean one calendar month.
7 654 of the 757 statutory instruments laid before the House in Session 2015–16 were subject to one of these two procedures: Clerk of the House of Commons (EUX 0010), para 5
8 Legislating for the United Kingdom’s withdrawal from the European Union, Cm. 9446, paras 3.16–3.18; Department for Exiting the European Union, Memorandum concerning the delegated powers in the European Union (Withdrawal) Bill submitted to the House of Lords Delegated Powers and Regulatory Reform Committee, July 2017, paras 37–44
9 European Union (Withdrawal) Bill, Third Report of the House of Lords Delegated Powers and Regulatory Reform Committee, Session 2017–19, HL Paper 22; European Union (Withdrawal) Bill: interim report, Third Report of the House of Lords Select Committee on the Constitution, Session 2017–19, HL Paper 19; written evidence from inter alia Professor Michael Dougan, University of Liverpool (EUX 0001), the Equality and Diversity Forum (EUX 0002), Dr Michael Gordon, Liverpool Law School, University of Liverpool (EUX 0006), Which? (EUX 0008) and Unlock Democracy (EUX 0011).
10 Q 12
11 How much legislation comes from Europe?, House of Commons Library Research Paper 10/62, 13 October 2010, p. 19, quoted in Legislating for the United Kingdom’s withdrawal from the European Union, Cm. 9446, para 2.6; EU obligations: UK implementing legislation since 1993, House of Commons Library Briefing Paper 07092, June 2015, p. 5, both cited in Simon Patrick, Scrutiny of Delegated Legislation in Relation to the UK’s Withdrawal from the European Union, The Constitution Society, 2017, p. 13.
12 European Union (Withdrawal) Bill, Third Report of the House of Lords Delegated Powers and Regulatory Reform Committee, Session 2017–19, HL Paper 22
3 November 2017