European Union (Withdrawal) Bill Contents

Chapter 8: Delegated powers

Introduction

157.The Bill contains a number of broad delegated powers, as noted by the Delegated Powers and Regulatory Reform Committee in its report on the Bill.94 In the delegated powers memorandum, the Government said these powers were needed due to the impending deadline for withdrawal, the scale of the legal changes that must occur before exit day and the need for flexibility for ministers and the devolved administrations to “deliver a functioning statute book for day one post-exit.”95

158.We anticipated in our earlier report, The ‘Great Repeal Bill’ and delegated powers, that the Bill would likely “propose that Parliament delegate to the Government significant powers to amend and repeal (primary) and revoke (secondary) legislation” to give effect to Brexit.96 We also recognised that “relatively wide” delegated powers were inevitable to remove laws that will be redundant on exit day and to ensure the coherent operation of the United Kingdom’s legal systems.97 However, we warned that the scale of the transfer of legislative competence to the Government raised “constitutional concerns of a fundamental nature” regarding the balance of power between Parliament and the Executive.98 We stressed that the delegated powers granted under the Bill should be as “limited as possible.”99

159.In our interim report, published shortly after the introduction of the Bill in the Commons, we concluded:

“the number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence. We stress the need for an appropriate balance between the urgency required to ensure legal continuity and stability, and meaningful parliamentary scrutiny and control of the executive.”100

160.These powers are set out principally, but not exclusively, in clauses 7–9. We assess these powers clause by clause, drawing attention in particular to their breadth and to Henry VIII powers. The broad delegated powers in the Bill must be read in light of the issues to which we drew attention earlier in this report concerning the complexities and ambiguities with the concept of retained EU law, including uncertainties as to its domestic legal status. The application of broad delegated powers to uncertain legal concepts is very likely to lead to serious difficulties, which strengthens the case for the amendments to the Bill we propose in Chapters 4 and 5.

161.Clause 7 provides a general power to deal with deficiencies in the law arising from withdrawal. More specific provisions in clauses 8 and 9 relate respectively to compliance with international obligations and implementing any withdrawal agreement.

Clause 7

162.Clause 7(1) provides:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

(a)any failure of retained EU law to operate effectively, or

(b)any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.”

Appropriateness

163.The power for ministers to do what they consider “appropriate” is subjective and wide. The Faculty of Advocates stated:

“Clause 7(1), which contains the principal corrective power, is formulated to enable an exercise of power which is ‘appropriate’ rather than ‘necessary’. As a matter of standard legal interpretation, the latter term would be understood as containing an objective test, whereas the word ‘appropriate’ is subjective, being in essence a matter of the Minister’s opinion—albeit she would [be required] to act reasonably and rationally when deciding whether it was ‘appropriate’ to make a particular provision. There is also concern about whether more policy-driven changes might be made under the head of appropriateness. Necessity might be thought to require a more clearly evidenced justification from the Minister.”

They continued “It would also provide reassurance that the exercise of the power is more obviously litigable, ‘necessity’ being a test that judges can more readily adjudicate than ‘appropriateness’.”101

164.The minister, Steve Baker MP, said “‘necessary’ could be interpreted as ‘logically essential’, and if there were a spectrum of choices then one could say that no one of them was logically essential because there was a choice. So we think it is right to say ‘appropriate’.”102 We do not agree with the minister that the interpretation of “necessary” by the courts would limit the remedies available to address a deficiency in retained EU law; it would require only that a remedy was required.

165.A similar issue regarding the use of the word “appropriate” arose in relation to the Sanctions and Anti-Money Laundering Bill 2017–19.103 Clause 1 of that Bill, as introduced, provided that “An appropriate Minister may make sanctions regulations where that Minister considers that it is appropriate” for a number of purposes. In response to consideration of the Bill in the House of Lords, the Government tabled an amendment at report stage that stated:

“An appropriate Minister may not decide that it is appropriate to make regulations to which this section applies unless, in respect of each discretionary purpose stated in the regulations, that Minister—

(a) has considered whether there are good reasons to pursue that purpose and has determined that there are, and

(b) has considered whether the imposition of sanctions is a reasonable course of action for that purpose and has determined that it is.”

166.The amendment further required that the minister, when making regulations, lay a report before Parliament stating how they reached their conclusion that there were “good reasons” and that this was a “reasonable course of action”. The amendment was agreed by the House on 15 January 2018.

167.The power of ministers to do what they consider “appropriate” is subjective and inappropriately wide. We recommend that the Bill be amended, in line with the Sanctions and Anti-Money Laundering Bill, to provide that, while the power remains available when ministers consider it “appropriate”, they must demonstrate that there are “good reasons” for its use and can show that the use of the power is a “reasonable course of action”. This will require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially.

Deficiencies

168.Clause 7(2) elaborates on the types of “deficiencies” the power is intended to address. While the “deficiencies” set out in clause 7(2) are designed to form an exhaustive, rather than illustrative list, clause 7(3) states that anything similar to the list in 7(2) may count as a deficiency and allows ministers to describe or provide for additional deficiencies by regulation.

169.The delegated powers memorandum states:

“The purpose of the power is carefully described. It is limited to addressing failures of EU law to operate effectively or any other deficiencies which arise from withdrawal; it avoids an attempt at defining ‘necessary’ changes. There are some changes that might not strictly be necessary for the law to remain functional but will resolve clear deficiencies.”104

170.The terms “failure” and “deficiency” are vulnerable to broad interpretation. Clause 7(9) expands clause 7(1) by linking the terms “failure or other deficiency” to the operation of any other provision in the Bill. It is left to the subjective opinion of a minister to determine what a “deficiency” is. This extends the possible scope of an already loosely framed provision.

171.A number of witnesses drew attention to clause 7 being unclear and vague.105 The Faculty of Advocates wrote “The draftsman’s lexicon contains a selection of terms whose meaning is clearly left to the courts. Thus, the concept of a ‘deficiency’ is not defined; however it seems likely that ministers will need to be prepared to justify in advance the substance of any identified deficiency.”106 They pointed out that in housing law107 “the word ‘deficiency’ does not have any particular legal connotation. It simply means ‘something lacking’.”108

172.As we pointed out in our interim report, although the courts, using their judicial review powers, may rule on whether a minister has taken an overbroad view in exercising the power, their task will be made difficult by the breadth of the power and, more generally, the overlapping nature of delegated powers in the Bill.109 Professor Young concluded that these powers were “broad and vaguely worded” and that this could give rise to potential litigation.110

173.Richard Greenhill explained that:

“delegated legislation is vulnerable to quashing if a court considers it to be ultra vires. The broader the enabling powers, the more likely courts are to infer that Parliament cannot have intended such powers to exist without implied limits. Uncertainty as to such limits risks undermining confidence in the state of the law with the possibility of administrative chaos if important regulations are retroactively quashed.”111

174.The Government stated, “Any list of deficiencies cannot be prospective as the Government must have the necessary flexibility to reflect the outcome of the negotiations. The serious consequences of not correcting these deficiencies and leaving gaps in the UK statute book has been widely recognised.” It added that it “is committed under the correcting power to making only appropriate changes to remedy deficiencies in retained EU law arising from the UK’s withdrawal from the EU.”112 It is unclear, however, what this commitment adds, given that the power in the Bill can be used only to make amendments that ministers consider appropriate.

175.The Government argued that “The power in clause 7 in particular is intrinsically limited. To be exercised there must be a deficiency in retained EU law and this deficiency must be caused by withdrawal.”113 The explanatory notes add: “The law is not deficient merely because a minister considers that EU law was flawed prior to exit.”114 The minister, Steve Baker MP, told us “The Government do not propose these powers lightly, and we want to limit the powers that we take simply to those that we need in order to meet the purposes of the Bill.”115

176.We are concerned that applying a subjective test of “appropriateness” to a broad term like “deficiency” makes the regulation-making power in clause 7(1) potentially open-ended. However, requiring that ministers set out the “good reasons” to use the power and that it is a “reasonable course of action", as we recommend above (para 167), would ameliorate the subjective nature of “deficiencies”.

Policy versus technical changes

177.Clause 7(7) restricts the general power given by clause 7. We previously advised that the Bill should “clearly set out a list of certain actions that cannot be undertaken by the delegated powers … as another means of mitigating concerns that may arise over this transfer of legislative competence.”116 Regulations under clause 7(7) may not impose or increase taxation, make retrospective provision, create a “relevant” criminal offence (those which carry a penalty of more than two years imprisonment117), or amend, repeal or revoke the Human Rights Act 1998 or, with limited exceptions, the Northern Ireland Act 1998. Powers under the clause also cannot be used to implement the withdrawal agreement, the vehicle for which is clause 9.

178.This is a narrow range of exclusions. As we noted in our interim report,118 the limited scope of these restrictions is accentuated when read in light of the broad ministerial powers elsewhere in clause 7, in particular in clause 7(5) (discussed below).

179.In our report, The ‘Great Repeal Bill’ and delegated powers, we said that it was important “that the Bill should recognise the distinction … between necessary amendment to the law to adapt it to Brexit, and discretionary amendments that are intended to implement changes to policy. The delegated powers granted by the Bill should allow the Government significant leeway to adapt EU law, without allowing those same powers to be used to effect substantive change to implement Government policy.”119 We recommended that a general provision be included in the Bill to that effect.120 No such provision is in the Bill. In our interim report we concluded that “the powers in the Bill as drafted provide considerable scope for significant policy changes to be made. The Bill therefore fails to respect the distinction for which we called in our earlier report between technical and policy changes.”121 Although the explanatory notes state that the Bill “does not aim to make major changes to policy or establish new frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one”,122 it leaves open the possibility that the powers in the Bill could be used to make significant policy changes.

180.The Public Law Project said:

“Strikingly, the Explanatory Notes suggest that issues arising out of ‘reciprocal arrangements’ could be a basis for finding retained EU law deficient and that the powers could therefore be used to remove the rights of EU citizens in the UK. The explanation advanced is that because other EU states will no longer have any obligations to UK citizens, an obligation on the UK to respect EU citizens’ rights would be a ‘deficiency’ in retained EU law. This is an extraordinarily broad interpretation of the concept of ‘deficiency’. If correct, it signifies that the powers in the Bill would allow Ministers through delegated legislation to make very significant changes to retained EU law not only in connection with the rights of EU citizens but more generally. Many other EU law obligations could be described as ‘reciprocal’ in this sense and therefore changed through delegated legislation if the powers in the Bill are not circumscribed.”123

181.Tom Brake MP said:

“in 20 years of being a member of Parliament I have never before experienced the sort of scope which the EU (Withdrawal) Bill gives to Ministers to do exactly what they want. They can make significant policy changes through secondary legislation. If new agencies have to be set up to take over from EU agencies, or if current agencies have to be given additional powers, you would expect that to come through primary legislation.”124

182.The minister, Steve Baker MP, told us:

“it would be wonderful to be able to tell you that we would make strictly no policy changes … but I have to accept that I can say only that we will not make major policy changes, and that those would be brought forward in primary legislation.”125

183.The Solicitor General added “I can repeat the assurance, which we give repeatedly but importantly, that we do not intend to use the provisions in this Bill to sneak through substantial or substantive policy changes in a way that would not pass the test of proper parliamentary scrutiny.”126

184.Given the wide scope of the powers in clause 7, and the subjectivity with which they may be used, ministerial assurances that the powers will not be used to make “major” or “substantive” policy changes are insufficient. The powers must be more tightly circumscribed on the face of the Bill so that they do not allow for major policy changes to be effected by them. We make a recommendation to this end below (para 211).

Henry VIII powers

185.Clause 7(1) is a potentially expansive Henry VIII power. The following provisions determine the scope of the power:

186.While the clause 7(1) power may be expected to be used primarily to amend retained EU law, it is clear, both from clause 7 and from the explanatory notes, that the power extends beyond this. As the Government states in the explanatory notes: “The power could be used to amend law which is not retained EU law where that is an appropriate way of dealing with a deficiency in retained EU law.”127

187.Clause 7 is an open-ended Henry VIII power, which allows for legal changes that would usually require primary legislation, for example creating public authorities under clause 7(6)(b). This power does not meet the recommendation of our earlier report, that it be “as limited as possible”.

188.We concluded in our interim report, “the Government will require some Henry VIII powers in order to amend primary legislation to facilitate the UK’s withdrawal from the European Union, but they should not be granted lightly, and they must come with commensurate safeguards and levels of scrutiny.”128 The restrictions in clause 7(7) do little to mitigate the delegation of excessive powers to the Executive. The Henry VIII power in clause 7 is not subject to appropriately significant scrutiny (to which we turn in the next chapter).

Clause 8

189.Clause 8 contains a regulation-making power intended “to prevent or remedy any breach” of international obligations arising from withdrawal.129 As with clause 7, the power in clause 8 is not restricted to modifying retained EU law.

190.Clause 8 contains a Henry VIII power in similar terms to clause 7(5) with restrictions on the power analogous to those in clause 7(7). But the restriction on using the power to impose or increase taxation does not apply in clause 8. As with clause 7, the power may be used when the minister considers it “appropriate”. However, the requirement that its use is “to prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom”130 makes it more clearly targeted.

191.While the clause 8 power is broad, it may be justified given the degree to which the UK’s international obligations will change as a result of the UK leaving the European Union. We recommend that the clause be amended, in line with our recommendation for clause 7 (para 167), to provide that power be available only when ministers consider it “appropriate”, can demonstrate that there are “good reasons” for its use and can show that the use of the power is a “reasonable course of action”.

Clause 9

192.Clause 9 is a broad general power enabling the Government to legislate to implement a withdrawal agreement. Clause 9(1) states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”131

193.The power may not be used until “a statute by Parliament approving the final terms of withdrawal” has been passed. The Government has committed to introducing an implementation bill to legislate for the outcome of the negotiations with the European Union, which would also serve the purpose of activating clause 9. Bill minister Steve Baker MP told us:

“The Clause 9 powers relate to things that we simply must have done by exit day or perhaps some preparatory measures that we might need to take by exit day that, for reasons of time, might need to run in parallel with the passage of the Bill. The substance of the implementation period is really a matter for that subsequent piece of legislation and would not be dealt with in this Bill and I would not expect us to use the Clause 9 powers to bring it forward.”132

194.Clause 9 contains a Henry VIII power in similar terms to clause 7(5), with the addition that it may be used to amend the European Union (Withdrawal) Act itself. The restrictions on this power are analogous to those in clause 7(7), save for the restriction prohibiting the amendment or repeal of the Northern Ireland Act 1998. Professor Gordon Anthony told us:

“on one reading you could say that regulations under Clause 9 could be used to amend the Northern Ireland Act to give effect to the withdrawal agreement. A number of questions relate to that. First, can secondary legislation be used to amend a constitutional statute? The other relates to the procedures that govern the making of regulations, which are in paragraph 6 of Schedule 7. That refers to resolutions in both Houses of Parliament but does not include any role for the Northern Ireland institutions.”133

195.Robin Walker MP explained the Government’s position:

“The provisions under Clause 9 would allow us only to implement the terms of the withdrawal agreement and the result of negotiations with the EU. It is therefore important that any changes to the Northern Ireland Act that might be needed to give effect to the agreement can be made. Unlike the known amendments that were made in the Bill to correct deficiencies, we cannot know exactly what amendments would look like until an agreement on our withdrawal from the EU has been made, but we have been very clear that any changes would have to be devolution-neutral—they would not make any change to the competencies in that respect—and of course would have to be compliant with our international obligations under the existing international agreements between Britain and Ireland and our obligations under the Belfast agreement. So we are talking about very minor technical things that would reflect the withdrawal agreement reached between the UK and the EU.”134

He added that any policy change required under the withdrawal agreement in relation to Northern Ireland would take place in the implementation bill rather than through use of the clause 9 power.135

196.It would require the strongest of justifications for ministers to be given a broad power by regulations to alter as they think “appropriate” any existing law, including the Act providing the power, on the basis of the terms of the withdrawal agreement.

197.As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill—we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known. We recommend that clause 9 be removed from the Bill.

Sunset clauses

198.In our report, The ‘Great Repeal Bill’ and delegated powers, we concluded that:

“The extent to which sunset clauses will be a viable means of controlling the powers granted to the Government … will depend on the specifics of the Bill … 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.”136

199.The Bill includes sunset provisions on the powers in clauses 7–9: those in clauses 7 and 8 will be available for two years from exit day, while the power in clause 9 expires on exit day. We received evidence suggesting that the powers could be used to amend the Act and bypass the sunset clauses.137 This would be unacceptable, however we do not consider that regulations to achieve such effect would be approved by Parliament even if they were to be proposed by Government.

200.Although we welcome the inclusion of the sunset provisions in clauses 7(8), 8(4) and 9(4), they do not resolve the other problems with these powers.

Clause 17

201.Clause 17(1) empowers ministers by regulations to make such provision as they consider “appropriate” in consequence of the Bill, permitting modification of “any provision made by or under an enactment”. It is a Henry VIII power. The power is limited such that it applies only to primary legislation passed or made before the end of the parliamentary session in which the Bill is passed i.e., assuming the Bill is enacted this session, only to Acts passed in or before session 2017–19.138

202.It is difficult fully to envisage what use might be made of these powers. Earlier we noted the Government’s view that clause 17(1) would allow ministers to designate items of retained EU law as either primary or secondary legislation in the domestic context (see para 67). This would allow these “consequential” powers, which in most bills are intended to be used only for technical or other ancillary matters, to be used to make major structural changes to the meaning of retained EU law.

203.The Government stated in the delegated powers memorandum that there were precedents for such wide consequential powers.139 It argued that, given the uncertainty of the situation, the Government needed these wide powers.140 While similar provisions exist in other statutes, in light of the other extensive powers in this Bill and the ambiguities about how they might be used, these examples are imperfect analogies. The consequential powers in this Bill will have broader application than similar provisions in other statutes.

204.Clause 17(5) empowers a minister by regulations to make such transitional, transitory or saving provision as the minister considers appropriate in connection with the coming into force of any provision of the Bill. As with clause 17(1), the possible uses of the power must be assessed in the broader context of the Bill. While the regulation-making power under clause 17(1) is subject to the negative procedure, regulations under clause 17(5) may be subject to no parliamentary procedure. Richard Greenhill said that clause 17(5) “gives ministers the power to make significant and potentially controversial transitional arrangements without the guarantee of even negative procedure scrutiny by Parliament.”141 He added, “It is customary for most Acts to enable commencement and transitional regulations to be made without any parliamentary scrutiny and without requiring such regulations to be laid before Parliament. But this is inappropriate in the special case of Brexit, where policy choices relating to timing and transition are uncertain and momentous in their own right.”142

205.Clause 17 supplements and expands the already broad Henry VIII power in clause 7. There are minimal restrictions on its use and the wide range of purposes for which it might be used are not clearly foreseeable.

206.We agree that the Government may require a power to make “transitional, transitory and saving provisions”. However, we are concerned that the Bill creates a power to make “consequential provisions” which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make “consequential provisions” to alter other enactments. We recommend that the power to make “consequential provisions” in clause 17 is removed.


94 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill (3rd Report, Session 2017–19, HL Paper 22)

96 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 45

97 Ibid., para 46

98 Ibid., para 47

99 Ibid., para 46

100 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 44

101 Written evidence from the Faculty of Advocates (EUW0033)

102 Q 53 (Steve Baker MP)

105 See, for example, written evidence from Client Earth (EUW0021).

106 Written evidence from the Faculty of Advocates (EUW0033)

107 Hall v Wandsworth LBC [2005] 2 All ER 192 (CA) per Carnwath LJ

108 Written evidence from the Faculty of Advocates (EUW0033)

109 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 38

110 Written evidence from Professor Alison Young (EUW0003)

111 Written evidence from Richard Greenhill (EUW0025)

112 Written evidence from the Department for Exiting the European Union (EUW0036)

113 Ibid.

115 Q 53 (Steve Baker MP)

116 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 51

117 Clause 14

118 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 42

119 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 43

120 Ibid., para 50

121 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 39

123 Written evidence from the Public Law Project (EUW0034)

124 Q 14 (Tom Brake MP)

125 Q 53 (Steve Baker MP)

126 Q 48 (Robert Buckland QC MP)

128 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), para 48

129 Clause 8(1)

130 Ibid.

131 Clause 9(1)

132 Q 49 (Steve Baker MP)

133 Q 36 (Professor Gordon Anthony)

134 Q 52 (Robin Walker MP)

135 Ibid.

136 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 73

137 Written evidence from Unlock Democracy (EUW0032) and Dr Antonios Kouroutakis, IE Law School (EUW0024)

138 Clause 17(3)

139 European Union (Withdrawal) Bill Delegated Powers Memorandum, para 97 citing “section 92 of the Immigration Act 2016, section 213 of the Housing and Planning Act 2016, section 115 of the Protection of Freedoms Act 2012, section 59 of the Crime and Courts Act 2013 and section 73(2) of the Immigration Act 2014.”

141 Written evidence from Richard Greenhill (EUW0025)

142 Ibid.




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