This key piece of Brexit legislation would cut across the separation of powers. The Lords should seize their chance to change itby Ann Taylor / February 16, 2018 / Leave a comment
The Brexit debate continues to dominate the UK political landscape and will do so for the foreseeable future. Can we, should we, remain in the/a customs union? Can we, should we, be a member of the/a single market? What will happen to the border between Northern and the Republic of Ireland?
All are substantial questions that will affect the everyday lives of people across the country. But the House of Lords Constitution Committee, which I Chair, has left all those arguments outside the door. We have looked specifically at the EU Withdrawal Bill, which is designed to transpose all EU law into UK law on the date of Brexit and next week enters committee stage in the Lords. The question is whether this key piece of legislation is fit for purpose and whether or not it will actually achieve its objectives.
We published our report on this legislation the day before the second reading of the Bill in the Lords and were very pleased that so many speakers in the subsequent debate referenced our concerns. In that report we concluded that there is a real danger of legal chaos if the Bill is not amended which would create great difficulties for the courts in terms of interpretation. These concerns are shared by the judiciary.
There is also the problem that the Bill, as drafted, puts far too much power into the hands of ministers and this would create significant constitutional problems. Such a set-up would cut across the separation of powers which is crucial in our democracy. We are also concerned about the implications for the devolution settlements and surprised that the promises given on this issue in the Commons—through which the Bill passed late last year—have not resulted in amendments from the government.
When introducing this Bill the Leader of the Lords, Natalie Evans, said that the government’s intention was “to have a functioning statute book on the day we leave.” The Constitution Committee agrees that this is essential but we do not think that the Bill as drafted can deliver this.
“Unless this legislation is changed significantly, it simply will not work”
Incorporating EU law into domestic legislation is uncharted territory with many challenges, not least because EU law is found in a number of places. Some is embedded in existing UK primary legislation, some in secondary legislation and some elements of EU law are directly effective but not actually written anywhere in the UK statute book. Other elements are non-legislative but are the result of court rulings. The Bill is not clear exactly what retained EU law will contain and there is insufficient clarity about how transferred rights under EU law might be amended later.
In respect of the additional powers it grants to ministers, the Bill represents a challenge for the relationship between parliament and the executive. It is clear that the government will need some broad powers to deliver legal certainty post-Brexit but democratic norms suggest that these powers should be restricted and subject to appropriate scrutiny. The Bill grants ministers overly broad powers to do whatever they think is “appropriate” to correct “deficiencies” in retained EU law. This gives ministers far greater latitude than is constitutionally acceptable.
On devolution, the Bill envisages the transfer of competences from the EU level to the UK government but does not provide clarity and certainty as to which powers will then be devolved and on what timescale. Some of these powers fall within areas of existing devolved administrations which is why those administrations are—understandably—concerned that the devolution settlements could be undermined. The government promised amendments on this issue in the Commons and the issue is extremely urgent if the government is to obtain legislative consent for the Bill from the devolved assemblies. No amendments have yet been put forward on this.
The Constitution Committee has proposed suggested amendments to address many of these issues which would make the legislation more fit for purpose. We consider that if all relevant retained EU law is given the status of primary legislation, deemed to be enacted on exit day, it would have a clear legal status. It would also acquire a primacy in relation to pre-exit domestic law that would be consistent both with the current legal status of EU law and the doctrine of parliamentary sovereignty. We also make significant recommendations as to how to deal with amendments to secondary legislation to protect the role of parliament and to make sure that as legislators we are able to fulfil our constitutional responsibilities of holding the government to account.
A lot of amendments have already been tabled to this Bill by the Lords. Some, such as any relating to a potential second referendum, will attract a lot of political and media attention. Others may seem very dry and boring, and some of the more constitutionally-focussed amendments may appear to fall into this category. But unless this legislation is changed significantly, it simply will not work.
This is an issue that goes above and beyond any pro or cons of Brexit as it is a question of constitutional competence rather than policy preference. If it is not resolved, we will see a flood of legal cases trying to disentangle the legislative mess that a poorly managed process produces. The interests of the UK, and its citizens, will not be looked after if such a key piece of legislation remains in this parlous state.