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…