Chapter 6: Other provisions (Parts 4 & 5)
Relationship to the European Union (Withdrawal) Act 2018
96.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.88 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) inserts a new section 5A into the 2018 Act, 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 should clarify which measures it anticipates being given the special status of retained EU law under new section 5A of the 2018 Act.
97.Clause 26(1) amends section 6 of the 2018 Act to introduce significant new ministerial powers on how courts may depart from CJEU interpretations of retained EU law.89 Under section 6(1) of the 2018 Act, after “exit day”, UK courts and tribunals cease to be bound by the jurisdiction of the CJEU. However, section 6 further provides that retained EU law is to be interpreted in line with any retained EU case law—namely those interpretations of the CJEU which were applicable on or before exit day. After exit day, the 2018 Act provides that only the Supreme Court or the Scottish High Court of Justiciary have jurisdiction to depart from CJEU interpretations of retained EU law, and in so doing the UK courts would apply the rules they exercise in departing from their own previous case law in relation to UK law.
98.The new scheme in clause 26(1) provides a minister with the power to make regulations setting the terms on which departures can be authorised. First, such regulations may designate a court or tribunal other than the Supreme Court and High Court of Justiciary as having the power to depart from CJEU interpretations. Second, the minister may specify “the extent to which, or circumstances in which,” the court or tribunal “is not to be bound by retained EU law.” Third, they can set out the test which a relevant court or tribunal “must apply” in deciding whether to depart from any retained EU law. Fourth, they can specify considerations which “are to be relevant” to the courts in coming to such decisions.
99.Retained EU law is the substantial body of EU law captured by the “snapshot” taken at the point of the UK’s departure from the EU and transferred into UK law by the 2018 Act. The power of the Supreme Court and the High Court of Justiciary under section 6 of the 2018 Act to depart from the interpretations given in retained EU case law would likely have been exercised sparingly, and with due regard for any legitimate expectations, legal certainty and other rule of law considerations that apply to the departure from precedent. Such powers are invariably exercised with the alternative of legislative amendment in mind. The new powers under clause 26(1) will empower ministers to require courts to depart from such considerations and instead apply ministerial guidelines that do not enact new law but declare how previously enacted law should be re-interpreted. There is no indication in clause 26 or the Explanatory Notes as to what the content of such guidelines might be.
100.Ministers may use these regulations to achieve various additional effects. First, such regulations may instruct courts on when and on what grounds to depart from domestic (i.e. UK) and not only EU judicial interpretations of retained EU law.90 Second, a minister may sub-delegate the power to determine what the applicable tests are for departing from previous interpretations to any from among a list of senior judges.91
101.The Bill contains safeguards in respect of these powers in clause 26(1). The regulation-making powers are subject to the affirmative resolution procedure and the powers cannot be used to reduce the rights and obligations arising under the Withdrawal Agreement itself. There is also a sunset clause restricting the making of regulations to the implementation period, though regulations made under such powers will endure beyond the implementation period.
102.The substantive justification for the powers in clause 26(1) is set out in the Delegated Powers Memorandum. It states that the approach:
“in the EU (Withdrawal) Act 2018 was taken before negotiations with the EU were concluded. The negotiations on the Withdrawal Agreement having concluded, there is now greater clarity on how EU law will be treated after the UK’s exit from the EU. In relation to the [Other Separation Issues], citizens’ rights, and the Northern Ireland Protocol, the Withdrawal Agreement provides a limited and clearly defined role for CJEU case law.”92
103.However, retained EU law concerns considerably more than just the issues relating to the Withdrawal Agreement, and no further light has been shed on its meaning than was apparent during the adoption of the 2018 Act or when the predecessor European Union (Withdrawal Agreement) Bill was first published in October 2019. The Delegated Powers Memorandum continues:
“there is no international law obligation to treat CJEU law in a particular way. This is an entirely domestic matter. Given that we are leaving the jurisdiction of the CJEU, it is right that UK courts should be able to decide to depart from the rulings of a Court whose jurisdiction, in most cases, is no longer relevant.”93
104.The powers in clause 26(1) go considerably beyond what is required to attain this goal, which has already been effected by section 6 of the 2018 Act by ending the jurisdiction of the CJEU and providing UK courts with the power to depart from retained EU case law in defined circumstances.
105.Clause 26(1) raises substantial constitutional concerns. If the meaning of UK law, as retained EU law will become after exit day, is to be altered, it should be for Parliament to change, not for ministerial guidelines to reinterpret.
106.We do not believe it is appropriate for courts other than the Supreme Court and the Scottish High Court of Justiciary to have power to depart from the interpretations of EU case law. Allowing lower courts to reinterpret EU case law risks causing significant legal uncertainty that would be damaging to individuals and companies. It would also increase court workloads as judgments involving departures are contested on appeal.
107.We do not believe the proposed consultation with senior members of the judiciary on the applicable tests for departures is an adequate substitute for the determination of such issues in adversarial proceedings in open court, open to interventions and with the assistance of counsel.
108.We cannot see the case for such broad and constitutionally significant regulation-making powers, and are not convinced by the rationale offered by the Government. We recommend that clause 26(1)(d) be removed from the Bill.
109.Clause 26(2) inserts new section 7C into the 2018 Act. This new section states that “Any question as to the validity, meaning or effect of any relevant separation agreement law is to be decided, so far as they are applicable” in accordance with the Withdrawal Agreement and other Agreements and “having regard to” the desirability of consistency between their provisions. The following subsection commences with the phrase “See (among other things)—” and lists various provisions of the Agreements. This subsection has no operative legal effect—it does not change the law nor clarify the meaning of any terms. The Explanatory Notes describe the provision as a “signpost”.94 While it may be helpful for the interpreter of the statute, it is content that is more appropriately suited to explanatory notes rather than statutory provision. We recommend that new section 7C(2) is removed from the Bill and its contents added to the Explanatory Notes.
110.Clause 27 amends section 8 of the 2018 Act. That section empowers a minister to make regulations to prevent, remedy or mitigate 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.95 Any expansion of the powers under section 8 requires substantial justification. The Government should explain why the powers in clause 27(2)(c) and 27(6) are necessary, and if unable to do so, should remove them from the Bill.
Parliamentary oversight
111.Clauses 29–32 provide for parliamentary review of EU law-making during the implementation period, certain dispute procedures under the Withdrawal Agreement, 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.
112.Clause 29 deals with 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. While there was no analogous role for the House of Lords or its European Union Select Committee in the predecessor Bill, the current Bill provides an equivalent procedure for the EU Select Committee of the House of Lords.
113.Clause 30 inserts a new section 13B into the 2018 Act regarding certain dispute procedures under the Withdrawal Agreement. It provides a scheme under which each House of Parliament is notified when a party has triggered a request to have an arbitration panel appointed to resolve a dispute and when the CJEU gives a ruling on an issue at the request of an arbitration panel convened to resolve such a dispute. It also requires the Government to report each year following the end of the implementation period on the number of times that the Joint Committee has been notified that dispute resolution negotiations had commenced.
114.The scheme gives no role to each House other than to be notified. As such there is a weaker role for Parliament than the previous version of the Bill, which contained a clause providing for parliamentary oversight of negotiations on the future relationship between the UK and the EU. That clause required a minister to report to Parliament on progress made in negotiations on any future relationship by the end of each reporting period and to provide a copy of that report to the Presiding Officer of each of the devolved legislatures, and to the First Ministers of Scotland and Wales and the First Minister and Deputy First Minister or Executive Office in Northern Ireland.96 In our interim report, we observed at paragraph 98 that the (now-removed) clause providing the scheme of consultation with Parliament was broadly consistent with recommendations outlined in our report on Parliamentary Scrutiny of Treaties, in which we said:
“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence. The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations.”97
The removal of this clause without any substitute commitment is therefore a matter of regret.
115.We recommend the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union.
116.Clause 31 repeals section 13 of the 2018 Act, which provided for “meaningful votes” on the Withdrawal Agreement.
117.Clause 32 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 Withdrawal Agreement. The reason appears to be that the passage of the Bill itself constitutes approval of the treaty.
Other matters
118.Clause 33 inserts a new section 15A into the 2018 Act to forbid a minister from agreeing in the Joint Committee to an extension of the implementation period. Article 132 of the Agreement, which allows for a single extension of the implementation period for up to one or two years, is unchanged, but a minister would be unable to agree to any such extension.
119.Clause 34 provides that the functions of the co-chair of the Joint Committee established under Article 164 of the Withdrawal Agreement are to be exercised personally by a minister.
120.Clause 35 inserts a new section 15C into the 2018 Act to provide that “The United Kingdom’s co-chair of the Joint Committee may not consent to the Joint Committee using the written procedure provided for in Rule 9(1) of Annex VIII of the withdrawal agreement.” This means that decisions made by the Joint Committee must be made by a minister in person. The Government explains that the purpose of this provision “is to ensure there is full ministerial accountability, including to Parliament, for all decisions made in the Joint Committee.”98
121.Clause 36 repeals “unnecessary or spent enactments”. This includes repeal of both the European Union (Withdrawal) Act 2019 and the European Union (Withdrawal) (No. 2) Act 2019. Each of these statutes placed a duty on the Government to seek extensions of the Article 50 period in certain circumstances. The repeal of the latter Act removes the ongoing duties placed on the Government to report on the progress of negotiations on the UK’s future relationship with the EU.
122.Some provisions of those Acts will remain in effect courtesy of paragraph 65 of schedule 5. This provision saves amendments to section 20(4) of the 2018 Act,99 which provides for regulations to be made amending the definition of exit day. Those amendments sought to ensure that ministers give legal effect to any changes to exit day agreed with the EU. The inclusion of this provision is surprising given the prohibition on extending the implementation period set out in clause 33.
123.Clause 37 amends section 17 of the 2018 Act, which requires the Government to seek an agreement with the EU to ensure that an unaccompanied child who has made a claim for international protection in a Member State can come to the UK to join a relative, and that an unaccompanied child in the UK can join a relative in the EU in equivalent circumstances. Clause 37 removes this obligation to seek to negotiate such an agreement and replaces it with a requirement to make a statement to Parliament. This statement must be made within two months of the passage of the Bill and must set out the Government’s policy on the matter.
Parliamentary sovereignty
124.Clause 38(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.” 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.”100
125.Clause 38 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 38(2) makes direct reference to new sections of the 2018 Act inserted by this Bill. Clause 38(2) provides that Parliament’s sovereignty “subsists” notwithstanding these provisions, while clause 38(3) states that “nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom.”
126.Parliamentary sovereignty is central to the constitution. We welcome the Government’s recognition that Parliament is sovereign, though we note that this clause has no legal effect.
Interpretation, supplementary and final provisions
127.Clause 39 is an interpretation provision. It provides, among other things, that “IP completion day” means 31 December 2020 at 11.00 pm.
128.Clause 40 provides that schedule 4, containing provision about regulations under the Bill, has effect. The standard test for the use of the powers in 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.
129.Clause 41(1) provides for 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.101 This Henry VIII power, contained in clause 41(2), is subject to clause 41(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,102 so the operation of clause 41(1) in general will be, despite its broad terms, constrained. The DPRRC nonetheless recommended that the affirmative procedure should apply to regulations under clause 41(1) which modify primary legislation.103 We agree.
88 European Union (Withdrawal) Act 2018, section 2(2)-(3)
89 European Union (Withdrawal Agreement) Bill, clause 26(1)(d)
90 Ibid., clause 26(1)(d), new subsection 5B(b)
91 Ibid., clause 26(1)(d), new subsection 5B(d)
93 Ibid., para 365
95 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)
96 European Union (Withdrawal Agreement) Bill [Bill 7 (2019)], clause 31, inserted section 13C(6)(b)
97 Constitution Committee, Parliamentary Scrutiny of Treaties (20th Report, Session 2017–19, HL Paper 345), paras 76 and 116
99 Amendments made by section 2 of the European Union (Withdrawal) Act 2019 and section 4 of the European Union (Withdrawal) (No. 2) Act 2019.
100 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.
101 European Union (Withdrawal Agreement) Bill, schedule 4, para 6
103 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal Agreement) Bill (1st Report, Session 2019–20, HL Paper 3), para 11