Summary
The European Union (Withdrawal) Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. Indeed, it is difficult to think of areas of constitutional concern that are not deeply engaged by the Bill. In this report, we draw attention to three broad constitutional themes that emerge from our analysis. Those themes respectively concern the relationship between Parliament and the executive, the rule of law and legal certainty, and the stability of the UK’s territorial constitution.
The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government. In the broader context, it is not merely that the Bill invests the executive with deep legislative competence by authorising the making of “any provision that could be made by an Act of Parliament,” it is that the Bill contains multiple such powers, which overlap to a very considerable extent, and which are not subject to an enhanced scrutiny process as we recommended in our previous report. In this way, the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency.
The multiple uncertainties and ambiguities contained within the Bill, to which we draw attention in this interim report, raise fundamental concerns from a rule of law perspective. The capacity of the Bill to undermine legal certainty is considerable. Whenever a Bill is unclear, rule of law concerns arise. But such concerns are especially troubling in relation to a constitutional Bill such as this. The Bill is fundamental to the content and application of the legal system post-exit since it determines both the content of large parts of the law (“retained EU law”) and the rules of priority and interaction as between retained EU law and other parts of domestic law. In such circumstances, legal certainty is essential, and the apparent multiple ambiguities in the Bill are deeply problematic. Individuals, organisations and the government need to know what exactly the law is, and what their rights and responsibilities are, post exit, without having to resort to litigation.
The UK’s departure from the European Union will have profound consequences for the devolution settlement within the UK. The ambiguities and uncertainties in the Bill extend to issues of devolved competence and this has implications for the balance of the power within the Union and the future of the devolution settlements.
Overall, we conclude that the Bill is highly complex and convoluted in its drafting and structure. This is not to deny that it must inevitably grapple with a set of difficult legal issues. But it is a source of considerable regret that the Bill is drafted in a way that renders scrutiny very difficult, and that multiple and fundamental constitutional questions are left unanswered. We will consider all of these issues in greater detail in our forthcoming inquiry on the Bill.