Summary of conclusions and recommendations
Repeal of the European Communities Act 1972
1.The revised definition of “exit day” in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between “exit day” as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK. (Paragraph 15)
Retained EU law
2.Clause 2 appears significantly broader than it needs to be. (Paragraph 21)
3.It is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as “retained EU law” by clause 2 and subject to the powers of amendment in clause 7. (Paragraph 22)
4.The implications of the Bill for reciprocal rights remain uncertain, as such rights are inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage. (Paragraph 37)
5.The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill. The ambiguities need to be resolved. (Paragraph 38)
Status of retained EU law
6.Retained direct EU law will be domestic law. There is no reason why Parliament cannot or should not assign to retained direct EU law a recognisable domestic legal status. The fact that retained EU law began life as something other than domestic law does not prevent Parliament from assigning it a domestic legal status once it becomes domestic law. Nor does the fact that retained direct EU law originated outside the domestic legal system provide any good reason for neglecting to assign it a domestic legal status once it is recognised as domestic law. (Paragraph 44)
7.As drafted, the Bill gives rise to profound ambiguities about the legal status of retained direct EU law by generally assigning it no particular status while attributing to it (either explicitly or obliquely) particular and different statuses for certain purposes. This is likely to cause confusion and legal uncertainty. In our view, it is essential that all retained direct EU law has the same legal status for all purposes. (Paragraph 51)
8.We recommend that the legal status that should be accorded to all retained direct EU law for all purposes is that of domestic primary legislation, as directly effective EU law is closely analogous to domestic primary legislation. This will secure legal continuity and certainty post-exit. (Paragraph 52)
9.We consider this approach to be fundamentally problematic. It is incomplete because it addresses the status of retained direct EU law for some purposes but not for others. It jeopardises legal certainty because assigning different statuses to retained EU law for different purposes, while assigning no status to it for some other purposes, is highly likely to cause confusion. The creation of such confusion is undesirable and incompatible with the Bill’s objective of securing legal continuity and certainty as the UK leaves the EU. (Paragraph 54)
10.If our recommendation is accepted to assign all retained direct EU law a single legal status, paragraph 19 of schedule 8 should be removed from the Bill, since it will become redundant. (Paragraph 56)
11.If the Bill is not amended so as to assign to all retained direct EU law a single legal status, paragraph 19 of schedule 8 should be amended so that it provides not only for the legal status (for the purposes of the Human Rights Act 1998) of retained direct EU legislation under clause 3, but also for the legal status (for HRA purposes) of the category of retained EU law to which clause 4 gives rise. (Paragraph 57)
12.If our principal recommendation to assign retained direct EU law a single legal status is not implemented, paragraph 3 of schedule 8 should be amended to clarify whether the retained EU law to which clause 4 gives rise is to be treated, for delegated powers purposes, in the same way as retained direct EU legislation under clause 3. (Paragraph 60)
13.We do not consider that it is appropriate to treat all retained direct EU law as secondary legislation for the purpose of determining whether it is subject to delegated powers in legislation other than this Bill. To do so would leave retained direct EU law, as defined by clauses 3 and 4, open to possible revocation by powers within existing Acts of Parliament which may not currently be readily ascertainable. From the perspective of legal certainty this situation is constitutionally unacceptable. (Paragraph 62)
14.As we recommend above (para 52), all retained direct EU law should be treated as domestic primary legislation for all purposes, including for the purpose of determining whether it is subject to the exercise of delegated powers contained in legislation other than this Bill. (Paragraph 64)
15.We recognise that the effect of our proposal is to render even technical and mundane elements of retained direct EU law immune from the use of non-Henry VIII delegated powers. However, we do not consider it possible to lay down in the Bill any formula capable of satisfactorily distinguishing between retained direct EU law that should be treated for this purpose as primary legislation and that which should be treated as secondary legislation. We therefore conclude that on balance, and applying a constitutional precautionary principle, it is preferable to treat all retained direct EU law as primary legislation. This will protect important legal norms and rights from revocation by the use of delegated powers which are not Henry VIII powers and which, as such, are often subject to lesser forms of parliamentary control and scrutiny than are Henry VIII powers (which are usually subject to the affirmative procedure). (Paragraph 65)
16.In addition, our proposed designation of all retained direct EU law as primary legislation would greatly improve legal certainty. Since this designation would exempt retained direct EU law from revocation by secondary law-making powers other than Henry VIII powers, it should be far easier to identify its vulnerability to change. Henry VIII powers which might be used to amend or repeal this law are a considerably narrower category than the more general and far broader category of secondary legislative powers to which retained direct EU law would otherwise be vulnerable were it designated as secondary legislation. (Paragraph 66)
17.It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation. (Paragraph 69)
18.The “case-by-case” approach favoured by the Government would produce a highly inconsistent tapestry of EU law, with given provisions having a different status for different purposes, and individual provisions having a different status from each other. This is a recipe for confusion and legal uncertainty. (Paragraph 70)
The “supremacy principle”
19.During UK membership of the EU, EU law takes priority over domestic law. This is well-recognised and it would be destabilising if, upon exit, retained EU law’s status radically changed such that pre-exit domestic law could prevail over it. However, while we support the policy aims that underpin clause 5(1) and (2), we consider—for reasons that we explain in the next section—that the way in which those provisions purport to give effect to these aims is conceptually flawed, sits uncomfortably with the doctrine of parliamentary sovereignty and is a potential source of legal confusion. (Paragraph 79)
20.It is constitutionally unacceptable for the Bill to be ambiguous as to what retained EU law the “supremacy principle” will apply. It is insufficient for the Solicitor General to suggest that there is a shared assumption as to what the “supremacy principle” means and that it will therefore function in the Bill as the Government wishes it to. If references to the “supremacy principle” were to be preserved in the Bill, then clause 5 should be amended to set out clearly the intended scope of the principle. (Paragraph 83)
21.If references to the “supremacy principle” were to be preserved in the Bill, then clause 5 would need to be amended to provide courts and others with suitable guidance for the purpose of determining whether a rule of the common law should be taken to have been “made” before or after exit. Providing such guidance is unlikely to be a straightforward matter. However, we do not make any specific proposals about what the form or content of any such guidance should be, because we consider, for reasons set out below, the notion of retaining the “supremacy principle” to be misconceived. (Paragraph 87)
22.We consider that the notion of maintaining the “supremacy principle” following exit amounts to a fundamental flaw at the heart of the Bill. We do not consider that clause 5 clearly operates to bestow “supremacy” on retained EU law once exit day arrives. The “supremacy” of EU law will cease to apply when the UK leaves the EU and Parliament repeals the ECA. Retained EU law, being domestic law, cannot benefit from “the principle of the supremacy of EU law”. (Paragraph 89)
23.The “supremacy principle” is alien to the UK constitutional system: not only did it originate outside that system, it also sits uncomfortably with established constitutional principles, most notably the doctrine of parliamentary sovereignty. If the cumbersome device of seeking to maintain the “supremacy principle” post-exit were the only means of seeking to give retained EU law priority over pre-exit domestic legislation, then attempting to leverage such an approach might be comprehensible, if not necessarily effective. However, as we set out below, we consider that the requisite status can be given to retained EU law in a way that is more straightforward and which accords with UK constitutional principles. (Paragraph 91)
24.We consider the objective of giving retained direct EU law priority over pre-exit, but not post-exit, domestic law to be a sensible one. However, we regard the means employed by clause 5 in seeking to deliver that object to be fundamentally flawed. In our view, the way to deliver this objective would be to put to one side the concept and language of supremacy, and to focus on the domestic legal status of retained direct EU law. We recommend that retained direct EU law should be made to prevail over pre-exit domestic law by providing in the Bill that retained direct EU legislation under clause 3 and all law that is converted into domestic law by clause 4 is to be treated as having the status of an Act of the UK Parliament enacted on exit day. (Paragraph 93)
25.No equivalent provision needs be made in relation to EU-derived domestic legislation under clause 2: such legislation already has the status of either primary or secondary legislation in domestic law, and already has a domestic date of enactment. Legal continuity will best be served by treating EU-derived domestic legislation as what it has always been: namely, domestic primary or secondary legislation in the ordinary sense. (Paragraph 94)
26.Treating retained EU law saved by clauses 3 and 4 as primary legislation would avoid the need for any “supremacy principle”, and would greatly simplify its constitutional position by ascribing to it a status consistent with the doctrine of parliamentary sovereignty. It would also complete the task of excising EU law from domestic law by making clear that retained direct EU law is, after exit day, domestic rather than EU law, subject only to the doctrines and principles of the UK constitution and not in any way contingent for its status upon the externally-derived constitutional doctrines of the EU. (Paragraph 99)
27.If the “supremacy principle” were to continue to feature in the Bill, clause 5(3) would need to be amended to clarify the extent to which retained EU law can be modified while retaining the benefit of that principle, and to clarify in what circumstances the modification of pre-exit domestic law would be such as to turn it into post-exit domestic law that is no longer vulnerable to the operation of the “supremacy principle”. However, in the light of our principal recommendation, that retained direct EU law should be treated as primary legislation enacted on exit day (para 93), we make no detailed recommendations on these matters. (Paragraph 103)
Charter of Fundamental Rights
28.The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day. (Paragraph 119)
29.We recommend that the Government provides the House of Lords with an updated view about the applicability of the Francovich principle and any transitional arrangements regarding it. (Paragraph 123)
Interpretation of retained EU law
30.The Bill takes a clear and sensible approach to the applicability of pre-exit case law post-Brexit. (Paragraph 131)
31.The Bill leaves it to judges to decide when it is appropriate to be guided by post-exit CJEU case law—and, when it is, what amount of weight should be ascribed. We are concerned that the Bill leaves courts without proper guidance on this fundamental question of policy and that, by deciding to attach weight or indeed not to attach weight to post-exit CJEU cases, judges may become involved in political controversy (Paragraph 141)
32.We recommend that the Bill should provide that a court or tribunal 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 court or tribunal should take account of any agreement between the UK and the EU which the court or tribunal considers relevant. (Paragraph 142)
33.We recommend that the Government’s statement accompanying regulations which modify retained EU law (see para 211) should also provide an explanation of the intention of the modification, to guide the courts in applying clause 6(3). (Paragraph 144)
34.The inclusion of “among other things” in clause 6(3) generates unnecessary uncertainty about the provision and should be removed or replaced with specific other factors. (Paragraph 146)
35.Preventing new references to the Court of Justice of the European Union after exit day provides clarity and certainty for new litigation; however it may undermine procedural fairness and access to justice in cases that were already under way, albeit that they had not, by exit day, resulted in a reference to the CJEU. Litigants in cases that began before the notification of withdrawal under Article 50 of the Treaty on European Union, or indeed before the referendum in 2016, will be treated differently in a way that was not reasonably foreseeable when their cases began. We recommend that the Government seek to clarify in any withdrawal or transition agreement whether domestic courts can continue to make references to the CJEU in relation to cases that began before exit day. (Paragraph 150)
36.The Government proposes to provide for the handling of pending cases with the CJEU in the withdrawal agreement and implementation bill. However, in the event that a withdrawal agreement is not reached, a bill would be needed to make provision on pending cases. We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of “retained EU case law”—and that the Government publishes, on exit day, a list of all such cases. (Paragraph 153)
37.We recommend that, as with cases that have already commenced (see para 150), the Government seek to clarify in any withdrawal or transition agreement whether domestic courts can make references to the CJEU after exit day in relation to new cases, where the cause of action arose prior to exit day, subject to the normal statute of limitations. (Paragraph 154)
38.If a transition period is agreed, the Government will need to provide for the operation of retained EU case law and its interaction with the CJEU in the withdrawal agreement and implementation bill. (Paragraph 156)
Delegated powers
39.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. (Paragraph 164)
40.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. (Paragraph 167)
41.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”. (Paragraph 176)
42.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). (Paragraph 184)
43.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”. (Paragraph 187)
44.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.” 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). (Paragraph 188)
45.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”. (Paragraph 191)
46.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. (Paragraph 196)
47.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. (Paragraph 197)
48.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. (Paragraph 200)
49.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. (Paragraph 205)
50.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. (Paragraph 206)
Scrutiny of delegated powers
51.We welcome the requirements in the Bill for publishing explanatory memoranda for instruments resulting from the Bill. If our earlier recommendation is accepted (para 167), we would expect the memoranda to include a statement from the minister setting out the ‘good reasons’ for the regulations and explaining that this constitutes a ‘reasonable course of action’. We further recommend that explanatory memoranda should include a certification from the minister 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. (Paragraph 211)
52.We do not consider that it is appropriate for the Henry VIII powers in this Bill to be exercisable by the negative procedure, particularly as they might be used to make legislation of substantive policy significance. The Government has not offered sufficient justification for the widespread application of the negative procedure in this context, given the constitutional implications for the separation of powers. (Paragraph 215)
53.We are concerned that, despite the broad powers in clauses 7–9 to make changes to retained EU law, only a narrow range of matters are subject to affirmative procedure. The narrowly-circumscribed set of circumstances for which affirmative procedure is required is constitutionally unacceptable. If the regulation-making process is deemed acceptable by Parliament for the use of these powers, the Bill should provide for the application of the affirmative procedure in relation to any measure which involves the making of policy. (Paragraph 219)
54.We reiterate the conclusion of our interim report, that “given the significance of the issues at stake, and the breadth of the powers involved, we are not convinced that urgent procedures are acceptable.” The made affirmative procedure should be far more tightly drawn and controlled in the Bill. (Paragraph 222)
55.We welcome the establishment of a sifting committee in the Commons to consider whether negative instruments resulting from this Bill are subject to the appropriate procedure. The House of Lords will need to adjust its procedures to address this task and may wish to consider whether a joint committee should be established with this function. (Paragraph 226)
56.The Bill does not give the sifting committee(s) power to strengthen the parliamentary control of an instrument, only to recommend that it be strengthened. We recommend that committee(s) should be empowered to decide the appropriate scrutiny procedure for an instrument, subject to the view of the House, in order to provide the necessary degree of parliamentary oversight. (Paragraph 227)
57.In our view, the Bill as drafted proposes scrutiny measures that are inadequate to meet the unique challenge of considering the secondary legislation that the Government will introduce once the Bill is passed. (Paragraph 228)
58.We look forward to the Leader of the House bringing forward proposals for scrutiny in the House of Lords early in the passage of the Bill. Enhanced scrutiny will be essential for the statutory instruments resulting from this Bill, once it has passed, and from other Brexit-related Bills. We welcome the commitment from the Leader of the House to enhance the resources available to the House for this scrutiny. (Paragraph 233)
Devolution
59.Clauses 10 and 11 create an area of joint responsibility. While the Government has clarified aspects of how joint responsibility will operate, there remains significant uncertainty as to how and when these joint powers will be exercised. We are left only with assurances from the Government that it hopes to identify quickly, in consultation with the devolved administrations, which powers can be transferred to the devolved institutions. (Paragraph 249)
60.Clause 11 has significant potential consequences for the devolution settlements if the transfer of powers and competences from the EU level to the devolved administrations does not take place swiftly and smoothly post-Brexit. We urge the Government to work closely with the devolved authorities to secure agreement on a revised clause 11. (Paragraph 250)
61.The agreement of common frameworks is essential to ensure that those areas that are currently governed by EU law return to the UK in a way that both maintains a common UK approach where needed and respects the principles of the territorial constitution. Securing such agreement will also help assuage concerns over the possible ramifications of clause 11 and may help secure legislative consent to the Bill by the devolved legislatures. It is important that all parties to the negotiations have similar incentives and work constructively to reach an agreement on the approach to common frameworks. We urge the UK Government and the devolved administrations to seek swift and tangible progress towards such frameworks in their negotiations. (Paragraph 260)
62.Effective inter-governmental relations are essential to achieve a smooth transfer of competences from the EU level to the devolved administrations and to agree new common UK frameworks. We urge the Government and the devolved administrations as a matter of urgency to work cooperatively to improve the operation of the Joint Ministerial Committee as the primary forum for these discussions. (Paragraph 264)
63.The constitutional consequences of proceeding with the Bill without legislative consent from the devolved legislatures would be significant and potentially damaging, both to the UK’s withdrawal from the European Union and to the union of the United Kingdom. It is imperative that the Government brings forward amendments to clause 11 and works through the Joint Ministerial Committee to ensure an agreed approach to the return of competences from Brussels and pan-UK agreement on common frameworks. (Paragraph 271)
64.The implications of the UK’s departure from the European Union for Northern Ireland, given their complexity and sensitivity, require special and urgent consideration by the Government. (Paragraph 279)
65.We recommend that the Government publish an assessment of the effect of the Bill and the UK’s withdrawal from the EU on the Belfast/Good Friday Agreement before the completion of the Bill’s consideration in the House of Lords. (Paragraph 280)