Chapter 6: Other provisions (Parts 4 & 5)
The relationship to the European Union (Withdrawal) Act 2018
91.Clause 25 provides for the retention of saved EU law at the end of the implementation period. Sections 2–7 of the 2018 Act provided a scheme for the retention of the EU law that was effective in UK law prior to exit day, and extended the supremacy ordinarily enjoyed by EU law to such retained EU law and to certain modifications of retained EU law after exit day.76 Clause 25 is meant primarily to substitute “IP [implementation period] completion day” for the original “exit day” as the operative date under which this conversion of EU law into UK law takes place. Clause 25(5) amends section 5 of the 2018 Act to insert a new section 5A, entitled “savings and incorporation: supplementary”. This complex provision clarifies that that certain legal measures that were time-limited by reference to the implementation period may nevertheless be given indefinite effect on and after the implementation period completion day by virtue of section 2, 3 or 4 of the 2018 Act. The explanatory notes provide no examples of the provisions to which this expression may apply. The Government has not clarified which measures it anticipates being given the special status of retained EU law under this provision.
92.Clause 26 amends section 6 of the 2018 Act and inserts a new section 7C: “Interpretation of relevant separation agreement law.” It provides that the various sister provisions of the Agreements shall, wherever possible, be given an interpretation that is harmonious as between the various agreements. This is a measure designed to secure greater legal certainty. However, the Government may wish to clarify the intention and effect of section 7C(2).
93.Clause 27 amends section 8 of the 2018 Act. That section empowers a minister to make regulations to prevent, remedy or mitigate, in respect of retained EU law, any deficiency in retained EU law or any failure of retained EU law to operate effectively arising out of the UK’s withdrawal from the EU. Clause 27 provides primarily for technical amendments or the substitution of “IP completion day” for “exit day”. However, clause 27(2)(c) and 27(6) amend section 8 to insert vague and potentially important new categories of deficiencies which would trigger the broad ministerial powers conferred by the 2018 Act. Neither the Explanatory Notes nor the Delegated Powers Memorandum make clear why such provisions are required. Section 8 of the 2018 Act lies at the heart of the concerns we expressed in our reports on the European Union (Withdrawal) Bill.77 Any expansion of the powers under section 8 must be justified, and no such justification has yet been provided by the Government.
Parliamentary oversight
94.Clauses 29–33 provide for parliamentary oversight of EU law-making, any extension of the implementation period and negotiations on the future relationship, and for the repeal of section 13 of the 2018 Act and disapplication of the regime for parliamentary scrutiny of treaty-making in section 20 of the Constitutional Reform and Governance Act 2010.
95.Clause 29 provides for parliamentary oversight of EU law-making in the implementation period. It provides that if the European Scrutiny Select Committee of the House of Commons reports that any such legislation raises “a matter of vital national interest to the United Kingdom”, confirms that it has taken such evidence as it considers appropriate and has consulted any departmental Commons committee with an interest, and sets the wording of a motion to be moved in the Commons by a minister, a minister must move that motion within 14 sitting days. This is unusual in making such detailed provision in a statute for the workings of a select committee and its relationship with the House as whole. Such matters are usually regulated by the standing orders and practice of each House. Clause 29 does not make similar provision for the House of Lords European Union Select Committee nor any committees of the devolved legislatures.
96.Clause 30 provides for an extension of the implementation period. Article 132 of the Withdrawal Agreement provides that “the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to 1 or 2 years.” Clause 30 provides that a minister may agree to an extension only if the Government has laid a statement before each House setting out the length of the proposed extension and a motion is passed by the House of Commons agreeing to the proposed extension. A motion for the House of Lords to take note of the statement would have to be tabled in that House by a minister. Consent of the Lords is not required.
97.Clause 31 provides for parliamentary oversight of the negotiation of the future relationship by inserting a new section 13C into the 2018 Act. It requires a minister to make a statement to the House of Commons on objectives for the future relationship with the EU and empowers the minister to make a revised statement at any time. The statement must be consistent with the Political Declaration of 17 October 2019, published alongside the Withdrawal Agreement. Section 13C(4) forbids a minister from engaging in negotiations with the EU unless the aforementioned statement has been approved by the House of Commons and a motion to take note of the statement has been moved in the House of Lords. Section 13C(5) requires that in conducting negotiations on the future relationship with the EU, a minister “must seek to achieve the objectives set out in the most recent statement on objectives” approved and moved under subsection (4). At the end of each reporting period of three months, the minister must lay a report before both Houses indicating the extent to which the outcome of negotiations is “likely to reflect the most recent statement on objectives” and the minister’s assessment of why, if applicable, the outcome of negotiations is not likely to reflect that statement. Subsections (7)–(9) provide a mechanism for parliamentary approval of a negotiated future relationship treaty. Subsection (9) provides that the treaty may be ratified only if it has been approved by a resolution of the House of Commons on a motion moved by a minister and either that the House of Lords has not resolved against the treaty within 14 sitting days of it being laid before it, or that it has so resolved but a minister has indicated by statement why it will nevertheless be ratified.
98.Insofar as this scheme provides an upstream role for both Houses of Parliament in the treaty-negotiating process, and imposes no compressed time limit on the House of Commons’ ability to decide whether to approve the treaty, it is consistent with the recommendations in our report Parliamentary Scrutiny of Treaties.78 Apart from the duty to provide a report to the devolved authorities and legislatures under subsection 13C(6)(b) there is no provision for their involvement.
99.Clause 32 repeals section 13 of the 2018 Act since the Bill would be enacted alongside the ratification of the Agreements and would provide for a scheme of “meaningful votes” going forward.
100.Clause 33 states that section 20 of the Constitutional Reform and Governance Act 2010, stipulating that treaties must be laid in Parliament for 21 days before their ratification, does not apply to the ratification of the Withdrawal Agreement. The reason appears to be that the passage of the Bill itself constitutes approval of the treaty.79
Workers’ rights
101.Clause 34 gives effect to schedule 4, which inserts a new schedule 5A into the 2018 Act. The primary protection for workers’ rights after the implementation period is expected to be achieved through the retention of EU law standards in the area and will be subject to further negotiations on the future relationship. Schedule 4 introduces certain procedural obligations designed to ensure that any departure from existing EU standards in the area of workers’ rights is clearly signalled and addressed in consultation with representatives of employers and workers. Schedule 4 is largely identical to the provisions published by the previous Government in March 2019.80
102.Schedule 4 is composed of three parts. Part 1 creates a scheme for ministers in charge of a relevant bill to report to either House at second reading of the bill. The minister must either make a “statement of non-regression” (i.e. that the provisions of the bill will not result in the law of the relevant part of the UK failing to confer workers’ retained EU rights) or a statement that the minister is unable to make a statement of non-regression but wishes to proceed with the bill anyway. This scheme is similar to that providing for ministerial statements of compatibility with the European Convention on Human Rights (ECHR) in section 19 of the Human Rights Act 1998. However, in the case of this Bill, paragraph 1(3) requires the minister to consult representatives of workers and employers and any other persons the minister considers it appropriate to consult in advance of making the statement. The scheme in this Bill is also different insofar as that in the Human Rights Act 1998 is in the context of the UK’s continuing obligations under the ECHR and accountability to UK courts and the European Court of Human Rights for departures from such obligations. Under the Bill, by contrast, there is at present no planned international treaty arrangement protecting such workers’ rights in the UK after the implementation period completion date.
103.Part 2 of schedule 4 requires the Secretary of State to publish reports on whether UK law diverges from “new EU workers’ rights” conferred by EU regulations or directives after the implementation period completion day. The Secretary of State is required to lay reports before Parliament clarifying whether there have been any new such rights created by the EU in a previous period. Where there have been, the report must either include a “statement of non-divergence” from existing UK law or a statement that the Secretary of State is unable to make one. Paragraph 2(4) requires that the Secretary of State, if unable to confirm non-divergence, to indicate in the report whether any action is to be taken, and if so in what form. A minister must make arrangements for motions allowing the House of Commons and the House of Lords to approve the reports.81
104.Part 3 of the schedule relates to its interpretation. The concept of “new EU workers’ rights” (operative for Part 2 of the schedule) is defined by reference to directives and regulations published in the Official Journal of the European Union relating to an enumerated set of general areas of labour rights (e.g. fundamental rights at work, fair working conditions, health and safety, among others). “Workers’ retained EU rights” (operative for Part 1 of the schedule, providing for the duty to lay statements of non-regression) is defined in the schedule by reference to a list of directives in a table in paragraph 4. The list in the table is not exhaustive of what might be regarded more generally as a workers’ right under EU law, including in the jurisprudence of the Court of Justice of the EU. It is evident from the schedule that this list of directives is not intended and cannot be read to limit the scope of workers’ rights that otherwise would have effect in the UK as retained EU law under the 2018 Act (as amended and supplemented by this Bill).
Parliamentary sovereignty
105.Clause 36(1) states: “It is recognised that the Parliament of the United Kingdom is sovereign.” This provision is in some respects analogous to section 18 of the European Union Act 2011, which stated that directly applicable or directly effective EU law “falls to be recognised and available in law in the United Kingdom only by virtue of [the European Communities Act 1972] or where it is required to be recognised and available in law by virtue of any other Act.”82 In our report on the 2011 Bill, we found that the provision was “self-evident” and that it “restates, but does not change, the law.”83
106.Clause 36 goes further than section 18 of the 2011 Act in that it refers simply to Parliament being “sovereign”, rather than the legal mechanism through which EU law takes domestic effect, and clause 36(2) makes direct reference to new sections of the 2018 Act inserted by this Bill. Clause 36(2) provides that Parliament’s sovereignty “subsists” notwithstanding these provisions, while clause 36(3) states that “nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.”
107.Parliamentary sovereignty is central to the constitution. We will consider the effects and implications of clause 36 in more detail in a subsequent report.
Supplementary and final provisions
108.Clause 38 provides that schedule 5, containing provision about regulations under the Bill, has effect. The standard test for the use of the powers across the Bill is “appropriateness” rather than “necessity” and the default scrutiny procedure for instruments not amending primary legislation or retained EU law is the negative procedure.84 There is no sifting procedure adopted in respect of the instruments that would be made exclusively under the provisions of the Bill and, in some cases, it is not clear that the sifting procedure provided for in the 2018 Act would apply to instruments made under powers inserted by the Bill into that Act.
109.Clause 39 provides for consequential and transitional provisions. It empowers a minister by regulations to make such provision as the minister considers appropriate “in consequence of this Act”. Such regulations permit the modification of any provision of any enactment and are subject to the negative procedure. This Henry VIII power, contained in clause 39(2), is subject to clause 39(3), which limits its application to primary legislation passed or made prior to implementation period completion day. That time limit nevertheless permits the amendment or repeal of any Act of Parliament passed before completion of the implementation period. Consequential powers are construed strictly by the courts,85 so the operation of clause 39 in general will be, despite its broad terms, constrained. As with the other delegated powers in this Bill, we await the assessment of the Delegated Powers and Regulatory Reform Committee.
76 European Union (Withdrawal) Act 2018, section 2(2)–(3)
77 Constitution Committee, European Union (Withdrawal) Bill: Interim Report (3rd Report, Session 2017–19, HL Paper 19); Constitution Committee, European Union (Withdrawal) Bill (9th Report, Session 2017–19, HL Paper 69)
78 Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345), paras 76 and 116
79 See to similar effect, clause 31, inserted section 13C(10)
80 House of Commons Library, Withdrawal Agreement Bill: Protection for workers’ rights, 22 October 2019
81 European Union (Withdrawal Agreement) Bill, schedule 4, new schedule 5A, para 2(5)
82 European Union (Withdrawal Agreement) Bill, clause 36
83 Constitution Committee, European Union Bill, (13th Report, Session 2010–2012, HL Paper 121), para 58. The European Union Act 2011 is due to be repealed in its entirety by the 2018 Act.
84 European Union (Withdrawal Agreement) Bill, schedule 5, para 7