Third Report Contents

Clause 8: complying with international obligations

(i) Effect

32.Clause 8 allows Ministers to make such regulations as they consider appropriate to prevent or remedy any breach of the UK’s international obligations arising from the UK’s withdrawal from the EU.

33.Clause 8 contains a Henry VIII power allowing the regulations to do anything that an Act of Parliament can do, including amending or repealing any Act of Parliament ever passed. This power is subject to several of the exceptions found in clause 7. However more can be done in regulations made under clause 8 than under clause 7. Under clause 8, the regulations can impose or increase taxation. Similarly the restriction on amending the Northern Ireland Act 1998 in clause 7 does not apply to clause 8.

34.Regulations made under clause 8 cannot be made after the period of two years following exit day.

(ii) Concerns

35.The appropriateness test in clause 8 gives Ministers greater scope to act than if the test were one based on necessity.

36.The Government have not been explicit about the sorts of international obligation they have in mind under clause 8, save for the example about trans-frontier television given at paragraph 52 of the delegated powers memorandum. It would be helpful if the Government would give more examples.

37.The Government have not explained why regulations under clause 8 (unlike regulations made under clauses 7 and 9) may impose or increase taxation, thus allowing the supremacy of the House of Commons in financial matters to give way to taxation by statutory instrument.

38.Unlike the corresponding test in clause 7, the power to make regulations in clause 8 relates to preventing or remedying breaches but does not extend to mitigating such breaches.

39.Tertiary legislation made under clause 8 escapes both parliamentary control and the two-year time limit applicable to secondary legislation. Nothing is said in the delegated powers memorandum to explain why a power to make tertiary legislation is needed in the context of clause 8. This is surprising given the unusual nature of the power.

(iii) Recommendations

40.Clause 8 involves an inappropriately wide delegation of power.

(a)The “appropriateness” test in clause 8 should be circumscribed in favour of a test based on necessity.

(b)The Government should demonstrate a convincing case before the supremacy of the House of Commons in financial matters gives way to taxation by statutory instrument.

(c)The Government should demonstrate a convincing case for requiring the power to make tertiary legislation under clause 8. Even if the power is needed, it is unsatisfactory that tertiary legislation made under clause 8 escapes both parliamentary control and the two-year time limit applicable to secondary legislation.

41.The Government should explain further how they propose to use this law-making power, including why the power to make regulations in clause 8 relates to preventing or remedying breaches but does not extend to mitigating such breaches.





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