Following the referendum on the UK’s membership of the European Union, and the triggering of Article 50 of the Treaty on European Union, the Government introduced the European Union (Withdrawal) Bill to give effect to Brexit. The Bill is designed to address the significant legal challenge that will result from the UK leaving the EU. By preserving existing EU law as it currently applies in the UK, and converting it into domestic law, it seeks to provide continuity and legal certainty on and after exit day. This is an essential task in order to avoid legal chaos. It is also uncharted territory; it is a legal undertaking of a type and scale that is unique and unprecedented, posing significant challenges for both the Government and Parliament.
The body of EU law is found in a number of different places, and in a number of different forms. Some is embodied in existing UK primary legislation; some in secondary legislation. Other elements of EU law are directly effective in the UK (by virtue of the European Communities Act 1972), but are not actually written anywhere in the UK’s statute book. Yet further elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union, regulatory rulings by EU agencies, or in the interpretation of our own courts.
The task of adapting the body of EU law to fit the UK’s circumstances following Brexit is 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. Yet preparations for the amendment of EU law need to be made before it comes into effect as UK law, in order that those changes will take effect on the day of Brexit, and this Bill seeks to provide for them. These amendments will sometimes be minor, for example removing references to EU institutions, and sometimes substantial, such as where an EU regulatory regime needs to be replaced with a UK regime.
We gave early consideration to these challenges in our report on The ‘Great Repeal Bill’ and delegated powers. We acknowledged that the Government would need abnormally wide powers to deliver legal certainty but we said that such powers would need to be tightly circumscribed and subject to close scrutiny by Parliament, for which new scrutiny mechanisms would be needed. Following the publication of the Bill, we examined in our interim report whether the Government had addressed our recommendations. We were disappointed that they had not taken our advice on board and we concluded that the Bill raised a series of profound, wide-ranging and interlocking constitutional concerns.
In this fuller assessment of the Bill we examine these concerns in detail. We conclude that the Bill risks fundamentally undermining legal certainty in a number of ways. The method proposed to create ‘retained EU law’—EU law that is being copied over into the UK statute book—will cause constitutionally problematic uncertainties and ambiguities:
The Bill also represents a challenge for the relationship between Parliament and the Executive. While we acknowledge that the Government needs some broad delegated powers—including Henry VIII powers to amend primary legislation—to deliver legal continuity post-exit, these powers need to be restricted and subject to appropriate scrutiny. However, here too the Bill falls short. The Bill grants ministers overly-broad powers to do whatever they think is ‘appropriate’ to correct ‘deficiencies’ in retained EU law. This gives ministers far greater latitude than is constitutionally acceptable. The Bill also includes an unacceptably wide urgent procedure, allowing the Government to make regulations lasting up to a month without any scrutiny by Parliament. In addition, the Bill provides for a power to implement the withdrawal agreement that is no longer required in light of Government commitments to bring forward a further withdrawal and implementation bill.
The Bill also has significant consequences for the devolved administrations and their relationship with the UK Government. The Bill envisages the transfer of competences from the EU level to the UK Government but does not provide clarity and certainty as to which powers will then be devolved and on what timescale. That some of these powers fall within areas of existing devolved competence has raised concerns in the devolved administrations, which makes it essential that inter-governmental relations on the Bill are conducted effectively. The UK Government urgently needs to secure political agreement with the devolved administrations in order to achieve legislative consent from the respective legislatures for the Bill. A failure to secure legislative consent would not legally prevent the Bill from being enacted, but it would have significant constitutional repercussions. In addition, we consider that the Bill poses specific challenges for Northern Ireland, as no executive is currently in operation in Stormont and no Assembly is convened to give its consent.
The Bill is therefore fundamentally flawed from a constitutional perspective in multiple ways. Nevertheless, it is possible to overcome its constitutional deficiencies to make it more fit for purpose. In this report, we propose a number of practical measures to address the flaws in the Bill without jeopardising the achievement of its objectives.
We consider that if relevant retained EU law is given the status of primary legislation, deemed to be enacted on exit day, it will not only have a clear status in relation to other domestic law, but it will also acquire a primacy in relation to pre-exit domestic law consistent both with the current legal status of EU law and the doctrine of parliamentary sovereignty. This would allow for the removal from the Bill of the ill-fitting “supremacy” principle—a European legal concept rather than a UK one—as the domestic principle of the primacy of the most recent Act of Parliament will apply. It also provides a clear position as to how retained EU law will be treated and amended in future.
We conclude that the Bill should provide that the courts shall have regard to judgments given by the CJEU on or after exit day which the court or tribunal considers relevant to the proper interpretation of retained EU law. We further recommend that the Bill should state that, in deciding what weight (if any) to give to a post-exit judgment of the CJEU, the courts should take account of any agreement between the UK and the EU which the court or tribunal considers relevant.
In relation to the broad delegated powers in the Bill, we propose a revised formulation for the usage of the powers. In line with the Government’s recent amendments to the Sanctions and Anti-Money Laundering Bill, we suggest that the delegated powers may be used when ministers consider it ‘appropriate’ but that they must lay before Parliament, alongside the regulations, a statement setting out the ‘good reasons’ for the regulations and explaining why this constitutes a ‘reasonable course of action’. In this way, the Government can secure the flexible delegated powers it requires, while Parliament will have a proper explanation and justification of their use that it can scrutinise. This statement of reasons and justification for action would appropriately be contained in an explanatory memorandum. In this regard, we welcome the inclusion in the Bill of a requirement for regulations to be accompanied by an explanatory memorandum, setting out what the EU law did before exit day, what is being changed and why, and why the minister considers that the instrument does no more than what is appropriate. We recommend that the minister introducing the regulations should certify, as part of that memorandum, that the regulation does no more than make technical changes to retained EU law in order for it to work post-exit, and that no policy decisions are being made. Such certification would assist Parliament to identify which instruments need greater scrutiny.
We welcome the Government’s inclusion of sunset clauses in the Bill, however they do not resolve the other problems with the broad delegated powers it contains. The scrutiny system proposed by the Bill is inadequate to meet the unique challenge posed by Brexit. While we welcome the provisions to create a sifting committee(s) to examine the regulations that will flow from the Bill, we recommend that the committee(s) should be empowered to set the scrutiny procedure for regulations, rather than merely advise on it, in order to provide the necessary parliamentary oversight. We look forward to the Leader of the House of Lords bringing forward proposals for the scrutiny system in the Lords, following discussions with the relevant committees and ‘usual channels’.
In relation to devolution, we heard criticisms, in particular, of clause 11. We note the Government’s commitment to amend this provision and recognise the need for political agreement between the UK Government and the devolved administrations before the appropriate amendments to the Bill can be finalised. We recognise that effective inter-governmental relations are essential both in order to achieve this task and to secure the aims set out in clause 11. We also call on the Government to publish an assessment of whether, and if so how, the powers in the Bill might be used to amend the Northern Ireland Act 1998 and the potential consequences this may have for the Belfast/Good Friday Agreement.
The Bill as drafted is constitutionally unacceptable. However its aims are valid and it can be amended to make it both appropriate and effective. This report offers a positive and detailed set of recommendations which will help address practical problems in the Bill, overcome the serious constitutional concerns we have identified and give effect to the Government’s aims in a way compatible with fundamental principles, in particular the sovereignty of Parliament. We look forward to engaging with the Government on our constructive suggestions for improvement.
We will continue to scrutinise this Bill during its consideration in the House of Lords. We will also be examining the other Brexit bills to ensure that they are constitutionally appropriate.