Guarantees made to parliament on the EU withdrawal bill must be respected, says the chair of the Lords constitution committeeby Ann Taylor / October 9, 2018 / Leave a comment
In the coming weeks the Brexit process will come to a head. Assuming the prime minister can agree a deal with the European Union, she will return to parliament, to give MPs a “meaningful vote” on the withdrawal agreement and political declaration for the future relationship. The pressure to make the meaningful vote a legal requirement was, unsurprisingly, the most contentious issue during parliament’s consideration of the European Union (Withdrawal) Bill, with ping-pong between the Commons and Lords required to reconcile the differences between ministers and their opponents in both Houses.
Less high-profile, but also of significant importance, were the arguments about the delegated powers the government wanted in the Withdrawal Bill. Delegated powers are the powers provided in a Bill that, following its enactment, the government can deploy to fill in the technical details to implement the policy. On the whole, government enjoys the flexibility delegated powers provide, while parliament can be reluctant to grant ministers such leeway, because they are subject to only limited parliamentary oversight.
The government wanted—and needed—broad powers to ensure a smooth transition in the UK’s laws before and after exit day. Some existing UK law that would cease to function after Brexit needed to be preserved and EU law had to be copied on to our statute book to ensure continuity and legal certainty. These laws then need to be amended so that they still operate when our membership of the EU ends. However, the scope of the powers the government sought was extremely wide, potentially allowing for all kinds of policy decisions to be made through secondary legislation, which is subject to much less parliamentary scrutiny than bills. So-called “Henry VIII powers” permit the government to make changes to Acts of Parliament using statutory instruments.
The committee that I chair, the House of Lords Constitution Committee, raised serious concerns about these powers. We argued that, while the government could reasonably expect more latitude than the norm given the circumstances of Brexit, the Bill went beyond what was constitutionally acceptable. The prospect of between 800 and 1,000 pieces of secondary legislation being introduced using these broad Henry VIII powers presented a fundamental challenge to parliament’s scrutiny. We concluded that the Bill “raised a series of profound, wide-ranging and interlocking constitutional concerns.”
One of the concessions made by the government in order to allow these…