Chapter 1: Introduction
Background
1.In October 2016, the Government announced its intention to bring forward a ‘Great Repeal Bill’ to facilitate the UK’s departure from the European Union while delivering legal “certainty and stability”.1 This was subsequently confirmed in a White Paper, published on 2 February 2017, which said that the Bill would “remove the European Communities Act 1972 from the statute book and convert the ‘acquis’—the body of existing EU law—into domestic law.”2
2.In March 2017, before the arrival of the Bill, we published a report, The ‘Great Repeal Bill’ and delegated powers, examining the constitutional issues that were likely to arise.3 We noted that the Government faced “a unique challenge in converting the current body of EU law into UK law,” that was “complicated not only by the scale and complexity of the task, but also by the fact that in many areas the final shape of that law will depend on the outcome of the UK’s negotiations with the EU.”4 We made recommendations about how this task should be approached, particularly in relation to the broad delegated powers the Government was likely to require and the safeguards and scrutiny processes they should be subject to.
3.In our report, we welcomed “the Government’s commitment to publishing a white paper on the ‘Great Repeal Bill’.” We said that it “should contain sufficient detail—including draft clauses—to allow for a proper debate on the Government’s approach.”5 The Government published its White Paper, Legislating for the United Kingdom’s withdrawal from the European Union,6 on 30 March 2017. While it referred to a number of our recommendations, it lacked detail in a number of important areas—such as devolution—and did not include draft clauses.
European Union (Withdrawal) Bill
4.On 13 July 2017, the Government introduced the European Union (Withdrawal) Bill in the House of Commons. The Bill seeks to “repeal the European Communities Act 1972 (ECA) and make other provision in connection with the withdrawal of the United Kingdom from the EU.”7 It is due to have its second reading debate in the House of Commons on 7 and 11 September 2017.
5.The European Union (Withdrawal) Bill has a simple and essential purpose; to provide legal certainty after the UK leaves the European Union. However, the practicalities of delivering that aim are not straightforward and the Government will need to be realistic about the complexity of the challenges involved in achieving it. The Bill is likely to be the most important legislation that this Parliament will consider. The political, legal and constitutional significance of the Bill—in particular its potential implications for the balance of power between Parliament and the executive—is unparalleled.
6.Accompanying the Bill are Explanatory Notes and a Delegated Powers Memorandum, both of which refer to our earlier report. Although it is our normal practice to report on Bills only when they are introduced in the House of Lords, we consider it appropriate to review this Bill early in light of its significant constitutional implications.
7.This follow-up report examines the European Union (Withdrawal) Bill by reference to our earlier conclusions and recommendations to establish the areas where the Government has taken our points on board and where there are still issues of concern. This report does not explore the Bill’s substance in detail or its legal and policy effect. We will shortly launch an inquiry and take evidence on the Bill with a view to publishing a further report on it later this Session, but some constitutional concerns about the Bill are so fundamental and so striking that it is important for us to identify and explain them now.
8.In Chapter 2, we consider how the Bill proposes to preserve EU law post-exit and how the principle of the supremacy of EU law will apply in relation to retained EU law. We note that the Bill raises difficult technical issues resulting from the relationship between retained EU law and domestic law. There is considerable ambiguity and uncertainty in the Bill as to how retained EU law will work in practice and how the supremacy principle will apply.
9.In Chapter 3, we explore the delegated powers in the Bill. Our earlier report concluded that, given the complexity of converting EU law into UK law in order to facilitate the UK’s exit from the European Union, and the time constraints involved, the Government would almost certainly need “relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit.”8 The Government quoted this in the Explanatory Notes on the Bill. However, the Government has ignored the qualifications on this statement we set out in our report and the safeguards that we required for such powers to be acceptable.
10.The Bill fails to respect the “key distinction” to which we drew attention in our earlier report. That is the distinction between “the necessary amendments that must be made to the existing body of EU law as a consequence of the UK’s exit from the EU, and substantive, more discretionary changes that the Government may seek to make to implement new policies in areas that previously law within the EU’s competence.”9 As we advised, only the former was a proper subject for delegated powers. The Bill also fails to adopt our proposal for “a sifting mechanism within Parliament that considers whether a particular piece of delegated legislation contains policy decisions that should trigger an enhanced form of Parliamentary scrutiny.”10
11.In Chapter 4, we look at how the Bill proposes that UK courts interpret the judgments of the Court of Justice of the European Union. We call for Parliament to give the courts greater clarity as to the status of CJEU judgments in domestic law.
12.In Chapter 5, we consider the devolution issues raised by the Bill. We conclude that the political and constitutional consequences of proceeding with the Bill without legislative consent from the devolved institutions would be significant and potentially damaging.
13.We conclude that the Bill fails to address many of the points made in our earlier report and that it will therefore require amendment to address these fundamental issues.
14.As part of our ongoing inquiry into the legislative process,11 we held an evidence session with Professor John Bell, Professor Paul Craig and Professor Alison Young to discuss what the ‘Great Repeal Bill’ might contain and what its consequences might be.12 All three subsequently made short submissions about the European Union (Withdrawal) Bill, which we draw on in this report. We are very grateful for their contributions to our work and to the assistance of our legal advisers.
2 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, p 10: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf [accessed 6 September 2017]
3 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123)
4 Ibid., paras 5–6
5 Ibid., para 9
6 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, Cm 9446, March 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604516/Great_repeal_bill_white_paper_accessible.pdf [accessed 27 June 2017]
7 European Union (Withdrawal) Bill [Bill 5 (2017–19)]
8 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 46
9 Ibid., para 37
10 Ibid., para 100
11 Constitution Committee, ‘Legislative Process inquiry’: http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/inquiries/parliament-2017/legislative-process/
12 Oral evidence taken on 1 February 2017 (Session 2016–17), QQ 134–142 (Professor John Bell, University of Cambridge; Professor Paul Craig, University of Oxford; and Professor Alison Young, University of Oxford)