By Charles Brasted and Andrew Eaton
On the eve of the debate in the House of Lords on the European Union (Withdrawal) Bill (the Bill), the House of Lords Constitution Committee (the Committee) has published a report (the Report) describing the Bill as "constitutionally unacceptable", "conceptually flawed" and concluding that, in its current form, it "risks fundamentally undermining legal certainty". The Report calls for a major re-write of the Bill, despite it having already been voted through the House of Commons earlier in January.
While recognising that the task of transferring EU law into UK law is a necessary, unique and unprecedented task and that the aims of the Bill remain valid, the Committee's recommendations go to the heart of the UK Government's proposed plans for preparing UK domestic law for Brexit.
The Report raises three key concerns about the Bill:
- the uncertainty regarding the domestic legal status of retained EU law and its interaction with other pre-existing and future domestic law;
- the need to further limit the Government's proposed "Henry VIII" powers; and
- the risk posed to the UK constitution in the event that the Government does not proceed with the political agreement of the devolved nations in relation to the proposed devolution of powers repatriated from the EU.
The uncertain status of retained EU law
Prior to Brexit, EU law forms part of the UK legal system by virtue of the European Communities Act 1972 (the ECA 1972). The Bill proposes to repeal the ECA 1972 – hence its unofficial title, the "Great Repeal Bill" – while at the same time retaining, as far as possible, all of the rules of the EU as part of UK domestic law immediately after Brexit.
The complication is that EU law currently applies in UK law in many forms. EU Directives are already given effect by domestic legislation, while EU Regulations have direct effect in the UK without having been written into the UK statute book. Yet more EU law is contained in the decisions of EU agencies and the judgments of the Court of Justice of the EU, whose rulings provide authoritative interpretations about the meaning and application of EU legal provisions.
The Government's proposed solution in the Bill is to create a new category of law in the UK post-Brexit, "retained EU law", which would have "a unique status within the domestic hierarchy". The Bill also purports to preserve the supremacy of this retained EU law over other domestic law that came into force before Brexit. This would mean that where other pre-Brexit domestic law is inconsistent with retained EU law, the retained EU law will be preferred, as EU law is now. Acts of Parliament enacted after Brexit would supersede inconsistent retained EU law, in accordance with the usual constitutional principles of legislative repeal.
The Committee rejects the need for retained EU law to have such a status, stating that there is "no reason why Parliament cannot or should not assign to [retained EU law] a domestic legal status". The Committee states that the Government's proposed approach would "cause constitutionally problematic uncertainties and ambiguities". In particular, the retention of the principle of supremacy of retained EU law is "conceptually flawed, sits uncomfortably with the doctrine of parliamentary sovereignty and is a potential source of legal confusion", not least because the scope of the principle is not defined in the Bill.
The Committee's proposal, which is a marked departure from the Government's approach in the Bill thus far, is to distinguish between EU-derived domestic legislation, i.e. that which already has a domestic legal status, and retained direct EU law, which does not. The Committee then proposes to remove the "ill-fitting" supremacy principle and replace it with a pronouncement that all retained direct EU law shall have the status of an Act of Parliament enacted on Brexit day. This approach, the Committee argues, would ensure retained direct EU law would prevail over earlier inconsistent legislation without the need to give it a novel and ill-defined status in UK law.
Unconstitutionally-wide Henry VIII powers
The task of transposing EU law requires much more than a cut-and-paste job. EU law must be adapted to fit the UK's specific circumstances. This means not only removing references to EU Institutions from the provisions where they will no longer play a role in the UK post-Brexit, but also potentially replacing entire EU regulatory regimes and modifying retained EU law to take account of the outcome of the UK's negotiations with the EU. The sheer scale and complexity of this task, which must take effect on or before Brexit day or risk considerable legal uncertainty, has led the Committee in a previous report to acknowledge that the Government would need "abnormally wide" powers, albeit with close Parliamentary oversight, to deliver it.
This is why the Government proposed that the Bill include the "Henry VIII" powers, which would allow the Government to amend primary and secondary legislation by Ministerial regulations in order to deal with "deficiencies" in retained EU law arising from the withdrawal of the UK from the EU.
The Committee has concluded that the powers, as proposed, are overly-broad and constitutionally unacceptable because they grant Ministers the power to do whatever they think is "appropriate". The Committee proposes a revised formulation, in line with the Government's recent amendments to similar powers in the Sanctions and Anti-Money Laundering Bill, whereby the Minister proposing to use the power must lay before Parliament a statement setting out the 'good reasons' why the action they propose is appropriate. The Committee also recommends that the Minister should certify that the proposed regulations do no more than make technical changes to retained EU law to correct deficiencies and that no policy decisions have been made. Parliament would then be able to scrutinise the Government's explanation and justification accordingly. Such certification would of course be in line with the Government's previous statements that policy decisions will not be made by this mechanism. However, it will give Ministers considerable pause for thought, given the difficulty drawing a clear distinction between merely "correcting" deficiencies in retained EU law and "policy-making".
The process of leaving the EU also has fundamental consequences for the relationship between the nations of Scotland, Wales and Northern Ireland and the UK Government. This is because their respective devolution settlements, which determine the policy areas that fall within the remit of the devolved administrations, are predicated on the UK as a whole continuing to be subject to EU law. When the UK leaves, decisions that would previously have been made in Brussels will need to be taken in the UK; the vexed question is whether such decisions should be taken by the UK Government or the devolved administrations.
The devolved administrations do not want decisions in their devolved policy areas to be taken by the UK Government. However, maximum devolution of (formerly) EU decision-making on Brexit could result in dramatic divergence in policy between the constituent nations of the UK. The UK Government has proposed that EU-level powers in devolved policy areas be retained by the UK Government in the first instance, before being transferred to the devolved administrations at a later date. Such an approach has displeased representatives of the devolved nations, some of whom have threatened to withhold legislative consent for the Bill.
The Committee criticises the Bill's lack of clarity and certainty as to which powers will be devolved and on what timescale. The Committee calls on the Government urgently to seek political agreement with the devolved administration to achieve legislative consent for the Bill. Although the lack of legislative consent would not legally prevent the Bill from being enacted, the Committee suggests that it would have "significant constitutional repercussions" for the UK as a whole.
Although the Committee has been at pains to stress that its proposals are intended to be constructive and necessary to make the Bill appropriate and effective, the Report is strikingly critical of the Government's proposed approach to legislating for Brexit. If the Report gains traction during the debates in the Lords over the coming weeks, this could result in the Bill being sent back to the House of Commons for reconsideration, in a process known as 'ping pong'. Given the urgent need for the Bill to be enacted so that the Government can get on with the task of transposing EU law, the battle between the Commons and the Lords could lead to a wider discussion about the legitimacy of the upper house to delay the process.