Summary of conclusions and recommendations
Introduction
1.At present, little detail is publicly available as to how the Government intend to take forward the process of converting the body of EU law into UK law—the conclusions and recommendations set out in this report are, therefore, necessarily conditional and framed in general terms. What is clear is that this process will be extremely complicated. It will also be done to an external deadline, imposed by the completion of negotiations and the timing of the UK’s exit from the EU. (Paragraph 8)
2.It is in everyone’s interests that, following the UK’s exit from the EU, the statute book is clear, consistent and unambiguous. In that light, we welcome the Government’s commitment to publishing a White Paper on the ‘Great Repeal Bill’. It should contain sufficient detail—including draft clauses—to allow for a proper debate on the Government’s approach. This vital task must be taken forward in a way that takes due account not only of the practical imperatives that will flow from the exit process but also of the fundamental importance of maintaining constitutional propriety.(Paragraph 9)
The ‘Great Repeal Bill’
3.It is vital that a distinction be drawn between two discrete processes: the more mechanical act of converting EU law into UK law, and the discretionary process of amending EU law to implement new policies in areas that previously lay within the EU’s competence. The ‘Great Repeal Bill’ is intended to facilitate the first aspect of the process. The second should be achieved through normal parliamentary processes. While we expect that much of the latter process will take place after Brexit, the Government have stated that they will introduce primary legislation to make substantive changes to certain areas currently covered by EU law, including immigration and customs law, alongside the process of domesticating the body of EU law through the ‘Great Repeal Bill’.(Paragraph 16)
4.We note that, in addition to transposing the body of EU legislation, the Government will need to consider how to treat those elements of EU law that are not legislative in nature—for example, the case law of the Court of Justice of the European Union or the history of regulatory decisions by European institutions. In particular, the Bill should provide clarity as to the status of the Court of Justice’s judgments, including the extent (if any) to which those judgments can or must be followed or taken account of by UK courts following Brexit. It will also be necessary to consider whether a distinction should be drawn in this regard between judgments given before and after the date on which the UK leaves the EU. (Paragraph 26)
5.In our view, it would be politically unlikely that UK courts would have to continue to follow the judgments of the Court of Justice following Brexit. UK law will start to diverge from EU law (even where UK law is derived from what was, before Brexit, EU law)—that is an inevitable consequence of the UK’s exit from the EU. That being the case, the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts “may have regard to” the case law of the Court of Justice (and we stress that it should be optional) in relation to judgments made both before and after the UK’s exit from the EU in order to assist in the interpretation of UK law. This will allow UK courts to take into account the judgments of the Court of Justice, but not be bound by them. (Paragraph 27)
6.The distinction between Henry VIII and other delegated powers is not in this exceptional context a reliable guide to the constitutional significance of such powers, and should not be taken by Parliament to be such. (Paragraph 40)
7.The ‘Great Repeal Bill’ will likely propose that Parliament delegate to the Government significant powers to amend and repeal (primary) and revoke (secondary) legislation to enable it to carry out the significant task of preparing the ground for the conversion of the body of EU law into UK law within the timeframe set out for the UK’s exit from the EU.(Paragraph 45)
8.Parliament should ensure that the delegated powers granted under the ‘Great Repeal Bill’ are as limited as possible. However, the degree of uncertainty as to what exactly the process of converting EU law into UK law will involve—and, in particular, the unknown outcomes of the UK’s ongoing Article 50 negotiations with the EU—will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary.(Paragraph 46)
9.The ‘Great Repeal Bill’ is thus likely to involve a massive transfer of legislative competence from Parliament to Government. This raises constitutional concerns of a fundamental nature, concerning as it does the appropriate balance of power between the legislature and executive. (Paragraph 47)
10.Parliament must consider how best to limit and to exercise oversight of the Government’s use of these extensive delegated powers. In addition, it is important that both parties recognise that the ‘Great Repeal Bill’ will be an exceptional piece of legislation, necessitated by the extraordinary circumstances of Brexit: while the Government may make a case for a wide array of discretionary powers, this should in no way be taken as a precedent when considering the appropriate bounds of delegated powers in future. Nor should the exceptional circumstances constituted by Brexit be taken in and of themselves to be a sufficient answer to legitimate concerns relating to the proper balance of constitutional authority as between Parliament and the Government.(Paragraph 48)
11.We recognise that, following the UK’s exit from the EU, the Government will no doubt wish to implement new policies in areas which were formerly within EU competence. We would be concerned, however, should the Government seek to do so using delegated powers which were granted for the purpose of converting the body of EU law into UK law. We would be similarly concerned if the Government, via the ‘Great Repeal Bill’, sought to secure delegated powers for the broader purpose of implementing new policies post-Brexit. EU law should initially be transferred into UK law with as few changes as possible (taking into account the result of the Article 50 negotiations with the EU and the need to adapt EU law to make sense in the UK’s domestic legal framework). If the Government subsequently wish to make changes of a substantive nature then those changes should be brought forward as primary legislation and be subject to the usual degree of parliamentary scrutiny.(Paragraph 49)
12.Parliament may, therefore, wish to consider implementing a general restriction on the use of delegated powers granted under the ‘Great Repeal Bill’. Whilst this will be a matter for detailed scrutiny by the Lords Delegated Powers and Regulatory Reform Committee when the Bill is introduced, we would suggest that a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only:
- so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and
- so far as necessary to implement the result of the UK’s negotiations with the EU. Paragraph 50)
13.The Bill should also clearly set out a list of certain actions that cannot be undertaken by the delegated powers contained in the Act, as another means of mitigating concerns that may arise over this transfer of legislative competence. (Paragraph 51)
14.The Government must give careful consideration to what kind of contingency plan would be needed in order to deal with any rejection of the Brexit deal by either side. (Paragraph 54)
15.We note that, following the repeal of the ECA, secondary legislation made under section 2(2) of the ECA will no longer be afforded primacy over incompatible UK law (unless the ‘Great Repeal Bill’ seeks to provide otherwise). The Government may wish to consider whether this change has the potential to unsettle the clarity of any current areas of the law. (Paragraph 59)
16.The Government should make clear how it intends to preserve and publish the exact text of the ‘snapshot’ of (what was) directly effective EU law if imported by means of a general provision in the ‘Great Repeal Bill’.(Paragraph 62)
17.The ‘Great Repeal Bill’ will need to make provision not only in relation to processes by which (i) directly effective EU law is selected for domestication and (ii) amended in the course of domestication, but also in relation to (iii) the process by which domesticated EU law can subsequently be amended. It is likely that this will need to involve a distinction between—or a mechanism for drawing a distinction between—technical amendments to be accomplished via secondary legislation and larger amendments involving policy choices that can be accomplished only via primary legislation. If this is not done, the risk arises of certain areas of law—simply as a result of the happenstance that they began life as directly effective EU law—being permanently vulnerable to being reshaped through the use of delegated powers. Similar issues arise with respect to statutory instruments passed under section 2(2) of the ECA which will, over time, need to be re-enacted in a way that reflects a more appropriate division between primary and secondary legislation. (Paragraph 67)
18.The extent to which sunset clauses will be a viable means of controlling the powers granted to the Government under the ‘Great Repeal Bill’ will depend on the specifics of the Bill. We do not, therefore, attempt to recommend how they might best be used or developed. But if the Government seek discretion to domesticate and amend significant elements of the body of EU law by secondary legislation, then it is essential Parliament consider how that discretion might be limited over time. The Government would need to present a very strong justification for not including sunset clauses in relation to extensive powers conferred for the purpose of transposing UK law into EU law. In addition, if it is clear that parliamentary scrutiny of particular issues will be curtailed during the transposition process—perhaps as a result of time pressures close to the day of Brexit—then we would expect that sunset provisions be used to ensure that those provisions were brought before Parliament again for proper consideration after the UK’s exit from the EU. (Paragraph 73)
Parliamentary scrutiny of delegated legislation laid under the ‘Great Repeal Bill’
19.We welcome the inquiry announced by the House of Commons Procedure Committee on delegated powers in the ‘Great Repeal Bill’, which will include addressing the issue of the “changes (if any) desirable to Commons procedures related to the delegation of powers or secondary legislation to address the likely scale and volume of ‘Great Repeal Bill’ legislation”.(Paragraph 82)
20.Given the likely uncertainty as to what exactly will be required to convert EU law into UK law, there will be occasions on which Parliament should be able to affect the content of secondary legislation determining matters of significant policy interest or principle. Paragraph 88)
21.Parliament is likely to face a significant challenge dealing with secondary legislation laid under the ‘Great Repeal Bill’. In order to mitigate the constitutional risks that will arise if the Government are given relatively wide discretionary powers to convert the body of EU law into UK law, we recommend the following: (Paragraph 102)
- That the Minister sign a declaration in the Explanatory Memorandum to each statutory instrument amending the body of EU law stating whether the instrument does no more than necessary to ensure that the relevant aspect of EU law will operate sensibly in the UK following the UK’s exit from the EU, or that it does no more than necessary to implement the outcome of negotiations with the EU. We note that, if the overall restriction set out in paragraph 50 above is included on the face of the Bill, the Joint Committee on Statutory Instruments will have the role of assessing whether each statutory instrument laid under the Bill complies with that restriction, given that its remit includes considering whether each statutory instrument laid before Parliament is intra vires.(Paragraph 102(1))
- That the Explanatory Memorandum to each statutory instrument sets out clearly what the EU law in question currently does (before Brexit); what effect the amendments made by the statutory instrument will have on the law (as it will apply after Brexit) or what changes were made in the process of conversion; and why those amendments or changes are necessary. (Paragraph 102(2))
- That the Government make a recommendation for each statutory instrument as to the appropriate level of parliamentary scrutiny that it should undergo. We would expect that a statutory instrument which amends EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure. (Paragraph 102(3))
- That a parliamentary committee(s) consider the Government’s recommendation, and decide the appropriate level of scrutiny for each statutory instrument laid under the ‘Great Repeal Bill’. If the two Houses perform this function separately, then it would seem appropriate in the House of Lords for the Secondary Legislation Scrutiny Committee to perform this function. Alternatively, a Joint Committee could be established to carry out this role on a bi-cameral basis. (Paragraph 102(4))
- That where the relevant committee(s) determines that a statutory instrument laid under the ‘Great Repeal Bill’ amends EU law in a manner that determines matters of significant policy interest or principle, it should undergo a strengthened scrutiny procedure. We do not, in this report, attempt to define exactly how this strengthened scrutiny procedure should operate, or whether one of the existing statutory models should be adopted. We recognise that existing models for enhanced scrutiny can prove resource intensive and time-consuming—in our view, the only essential element of whatever strengthened procedure is selected is that it should provide an opportunity for a statutory instrument to be revised in the light of parliamentary debate. (Paragraph 102(5))
22.Given the volume of secondary legislation expected to be required to implement the conversion of EU law to UK law, effective use of external expertise and public consultation may well prove an essential tool for committees tasked with scrutinising secondary legislation laid under the ‘Great Repeal Bill’. (Paragraph 105)
23.We note that scrutiny committees will need the capacity, expertise and legal support to cope with the increased volume and complexity of secondary legislation. We look to the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, both of which have extensive experience in the scrutiny of secondary legislation, to advise the Liaison Committee as to what will be required to deal with the secondary legislation flowing from the ‘Great Repeal Bill’ and other Brexit-related legislation. Given that there can be a long lead-in time for recruiting and training new staff, thought will need to be given at an early stage to ensuring that these additional resources are in place and up to speed by the time the ‘Great Repeal Bill’ has completed its passage through Parliament.(Paragraph 108)
24.The UK’s exit from the EU will provide the devolved legislatures with the freedom to legislate in devolved areas that are currently circumscribed by EU law. This will mean that the UK Government and the devolved administrations will need to manage new interfaces—and potentially overlapping responsibilities—between reserved matters and devolved competence in areas where the writ of EU law no longer runs. The UK Government and devolved administrations will need to agree, before Brexit, how those new interfaces will be managed. (Paragraph 114)
25.The UK Government should make clear whether the ‘Great Repeal Bill’ will provide for the UK Government to amend the whole body of EU law in preparation for the UK’s exit from the EU, following which the devolved institutions will take responsibility for those matters that fall within devolved competence, or whether they intend that the ‘Great Repeal Bill’ will leave to ministers in the devolved administrations the ability to prepare amendments to those elements of EU law that will, following Brexit, fall within their competence. (Paragraph 121)
26.If the former, then the devolved institutions will need to be appropriately consulted on the amendments to EU law in areas that fall within their jurisdiction. If the latter, it is essential that the devolved institutions work closely with the UK Government to ensure that EU law does not ‘fall between the cracks’ of their respective jurisdictions and that decisions on the repeal or adoption of domesticated EU law are taken in a way that has regard to the coherence of the Union. (Paragraph 122)