42.Clause 9 allows Ministers to make such regulations as they consider appropriate for the purposes of implementing the withdrawal agreement. There are limits to what regulations under clause 9 can do, broadly similar to those in clause 7. No regulations may be made under clause 9 after exit day.
43.Importantly, regulations under clause 9 can do anything that an Act of Parliament can do, including amending or repealing the European Union (Withdrawal) Act itself. Clause 9(2) reads:
“Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”
Although clause 9(2) is expressed as a power to “modify” the Act, suggesting less substantial change, “modify” is defined in clause 14(1) to include amendment and repeal. The inclusion of this power to amend and repeal the Act itself does not appear in clauses 7 and 8 and is therefore implicitly excluded from those clauses.
44.Clause 9 allows for important matters in the withdrawal agreement (for example, the rights of EU citizens resident in the UK) to be implemented in domestic law by negative procedure regulations, even if this requires extensive changes to primary legislation (for example, the Immigration Acts).
45.Although clauses 7 and 8 contain wide Henry VIII powers, clause 9 contains the widest Henry VIII power. Regulations under clause 9 may, in addition to amending or repealing any Act of Parliament whenever passed, also repeal the European Union (Withdrawal) Act itself. Such an instrument must adopt the affirmative procedure. Notwithstanding, this power is wholly unacceptable. By way of example, to implement the withdrawal agreement Ministers could by statutory instrument:
(a)repeal the restrictions in clauses 7 to 9 that time-limit the making of regulations;
(b)amend clauses 3 and 4 to alter the scope of “retained EU law” so that in certain areas it includes EU legislation passed after exit day;
(c)amend clause 5 so that the supremacy of EU law is retained for certain purposes or for certain areas of law;
(d)amend clause 6 so that in certain areas the courts have to follow decisions of the Court of Justice of the EU made after exit day;
(e)widen the scope of clause 7 to allow regulations to make major policy changes, to the extent that they cannot already.
46.It is no answer for the Government to say that they would never use a statutory instrument for these purposes. Clause 9 is wide enough for Ministers to do so. We judge powers not on how the Government say that they will use them but on how any Government might use them.
47.The delegated powers memorandum justifies the extraordinary width of this Henry VIII power because the “exact use of the power will of course depend on the contents of the withdrawal agreement” and the “nature and scale of the legislative changes required are as yet unknown”. The answer to this is as follows. The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable of passing urgent Bills with extraordinary expedition.
48.Clause 9 involves an inappropriate delegation of power in allowing statutory instruments to amend or repeal the European Union (Withdrawal) Act.
49.If, before exit, amendments are needed to the European Union (Withdrawal) Act, it is for Parliament to make the changes through primary legislation rather than for Ministers to do so by statutory instrument, particularly where significant and contentious policy issues are at stake.
18 Schedule 7, para. 6(1) and (2)(g).
19 Para. 62.
20 Para. 60.