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The “political, legal and constitutional significance of the Bill is unparalleled”

Published: 21 September 2017
In an interim report on the European Union (Withdrawal) Bill, the House of Lords Constitution Committee has said that the “political, legal and constitutional significance of the Bill is unparalleled”. In this post, Mark Elliott and Stephen Tierney examine the main points made in the report and comment on the key issues raised by it.
In March 2017, in anticipation of what was then colloquially known as the “Great Repeal Bill”, the House of Lords Constitution Committee took the unusual step of issuing a report on the issues likely to be raised by that legislation. The Committee has now taken the equally unusual step of issuing an interim report [PDF]on the EU (Withdrawal) Bill itself prior to the commencement of its passage through the House of Lords. A longer report, which will be preceded by an inquiry, will follow. In remarks announcing the publication of the Committee’s interim report, its Chair, Baroness Taylor of Bolton, drew attention to the fact that the Committee is “disappointed that we have not only been misquoted by the government” — the explanatory documents accompanying the Bill made highly selective reference to the Committee’s March 2017 report — “but that our key recommendations have been ignored”.
In its newly published interim report, the Committee observes that the Bill “raises a series of profound, wide-ranging and interlocking constitutional concerns” that fall into three principal categories: namely, the rule of law and legal certainty; the relationship between Parliament and the executive; and the stability of the UK’s territorial constitution. In this way, the Bill implicates a network of fundamental constitutional principles; as the Committee puts it, “it is difficult to think of areas of constitutional concern that are not deeply engaged by the Bill”. In this post, we outline the Committee’s key points in these three areas and comment on some of the principal issues arising from the report.


The rule of law and legal certainty

The Committee finds that the Bill contains “multiple uncertainties and ambiguities” that “raise fundamental concerns from a rule of law perspective”. And it observes that such difficulties are “especially troubling” in relation to this Bill. This follows because the Bill does not merely set down legal rules that regulate a discrete and contained sphere of activity; rather, it will be constitutionally fundamental to the nature and operation of the post-exit legal system. The many rule of law issues deficiencies contained in the Bill are thus rendered “deeply problematic”, given its place as, in effect, a basic constitutional text.
Among the rule of law issues identified by the Committee are matters pertaining to “exit day” — a concept that is axiomatic, given that many of the Bill’s provisions only become operationally effective, or are otherwise related to, that date. Yet, as the Committee points out, “exit day” means whatever Ministers stipulate, albeit that they are under no duty to do so (meaning that the Bill’s central provisions might never be rendered operationally effective), while “exit day” can mean different things for different purposes (thus raising the prospect of specifying it in a way that undermines the Bill’s sunset clauses). The Committee also points out that, in specifying what constitutes “exit day” for various purposes, Ministers are free from any form of parliamentary control, since the Bill stipulates the use of neither the affirmative nor the annulment procedure for the making of regulations concerning “exit day”.
However, these concerns as to legal certainty are merely the tip of the iceberg. The Committee goes on to identify a cluster of such concerns in relation to the notion of “retained EU law”, which lies at the conceptual heart of the Bill. For instance, the Committee points out that the concept of “EU-derived domestic legislation” appears to be unnecessarily broad, noting in particular that clause 2 includes within that category domestic legislation (such as Acts of Parliament implementing or otherwise relating to EU obligations) that will be unaffected by Brexit and by repeal of the European Communities Act 1972. This, in turn, creates uncertainties as to whether ministerial “correction” powers conferred by clause 7 can be used in relation to existing domestic legislation that relates to EU matters even though such legislation may not need to be “saved” by the Bill (because it would in any event survive ECA repeal unscathed).
As well as raising concerns about the clarity of the scope of retained EU law as a category, the Committee identifies serious ambiguities relating to the position of that body of law within the wider corpus of domestic law. For instance, the Committee notes that the taxonomical status of some retained EU law is fundamentally uncertain. While existing primary and secondary legislation that relates to EU matters (and thus, according to clause 2, counts as EU-derived domestic legislation) has a ready-made status, the same is not     true of directly effective EU law that will be domesticated by operation of clauses 3 and 4. Yet the Bill does not assign those elements of retained EU law any domestic taxonomical status. That, in turn, raises questions about whether it should be regarded as primary legislation, secondary legislation or something else entirely — questions that will be of considerable practical import when issues arise, as they surely will, about how retained EU law interacts with other domestic law and about the extent to which it can be challenged via judicial review.
A further concern identified by the Committee pertains to the relationship between clauses 2 and 4 insofar as they relate to EU directives and existing domestic implementing legislation. The Committee notes that directly effective provisions of EU directives appear to be domesticated by clause 4 whether or not such provisions have already been given domestic effect by UK implementing legislation that will be saved by clause 2. As the Committee observes, this raises the question whether clauses 2 and 4 could generate two domestically applicable versions of the same EU norm — that is, the fully domestic version that is contained in clause 2-saved UK legislation, and a further, purely EU version that it brought into domestic law by clause 4.
Finally, in this regard, the Committee notes a fundamental ambiguity concerning the provision made in clause 5 about the continued pertinence of “the principle of the supremacy of EU law”. The Committee will examine this issue in detail in its next report, but for the time being says that clause 5 is “ambiguous and risks creating considerable uncertainty”. As the Committee points out, it is difficult to see what practical application the principle of the supremacy of EU law can have post-exit day if, upon exit, EU law is excised from the domestic legal system. Put bluntly, there will simply be no EU law to which the supremacy principle can attach, meaning that, even if the principle is preserved by clause 5, it will merely beat the air. Moreover, even if that conceptual objection can somehow be overlooked, clause 5 remains fundamentally ambiguous given that it does not specify which categories of retained EU law the supremacy principle is intended to privilege.


The relationship between Parliament and the executive

In its report on the anticipated ‘Great Repeal Bill’ in March, the Committee raised considerable concerns about what it anticipated would be very broad delegated powers. The interim report repeats a number of these issues while identifying new and highly significant problems. We have noted Baroness Taylor’s reference to misquoting. A particularly egregious example arises in this context. In the Explanatory Notes on the Bill the Government quotes from the Committee’s earlier report in a highly selective fashion. For example, it cites the Committee’s recognition that the process of converting EU law into UK law “will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law”, while neglecting the crucial caveat that “Parliament should ensure that the delegated powers granted under the ‘Great Repeal Bill’ are as limited as possible.” In a highly unusual move, the Committee takes the step of accusing the Government of deliberately ignoring it.
The principal concern of the Committee is the breadth and depth of delegated powers in the Bill. Here the Committee is also hard-hitting, describing the “number, range and overlapping nature of the broad delegated powers” as “effectively unlimited”, weaving a “tapestry of delegated powers that are breath-taking in terms of both their scope and potency”. Furthermore, these powers would “fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence.” A related worry for the Committee is that the ambiguities which complicate interpretation of clauses 2–6 will have consequences for the scope of these delegated powers. As we have discussed, notions such as “retained EU law”, as well as the concept of “deficiency”, are bedevilled by interpretive uncertainties, and yet it is in relation to these very terms that the broad delegated powers in the Bill are accorded.
A related issue is that there are few explicit areas of law to which delegated powers will not apply. The Committee repeats the recommendation in its earlier report that the Bill should “clearly set out a list of certain actions that cannot be undertaken by the delegated powers … as another means of mitigating concerns that may arise over this transfer of legislative competence.” The Committee offered a framework for such a circumscription of delegated power, recommending that the Government distinguish between powers required to make the necessary amendments to the existing body of EU law as a consequence of the UK’s exit from the EU, and substantive, more discretionary changes that could be used to implement new policies. In particular, it stated that powers granted essentially to convert the body of EU law into UK law should not be used to “implement new policies.” Despite assurances by the Government in the Explanatory Notes that the powers will not be used to for the latter purpose, the Committee takes the view that clauses 7 to 9, as drafted, leave open this possibility. Therefore, the Committee states bluntly that the Government “should place on the face of the Bill restrictions on the powers to limit their use to purely technical changes”.
A further set of concerns apply to provisions in the Bill for scrutiny of delegated powers. Again a number of recommendations contained in the Committee’s earlier report are not reflected in the Bill, such as a heightened scrutiny procedure for certain measures. Furthermore, the Committee expresses concern that “only a narrow range of matters require the express consent of Parliament through the affirmative procedure”. The Committee makes clear that when it launches its inquiry into the powers to be granted under the Bill, effective scrutiny will be a central concern. Matters to be addressed include the “made affirmative” procedure which allows the Government to make instruments with no initial parliamentary scrutiny in urgent circumstances (the Committee is “not convinced that urgent procedures are acceptable”), the range of instruments that can be made by negative procedure (including via a wide range of Henry VIII powers), and whether enhanced scrutiny procedures are required for this Bill.
In anticipation of this inquiry the Committee is however clear as to the significance of the constitutional issue at stake: “The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government.” As Second Reading commences in the House of Commons, parliamentarians should take these words extremely seriously. The constitutional position of Parliament itself is at stake should the powers contained in the Bill be passed into law as they stand.


The stability of the UK’s territorial constitution

The interim report also addresses devolution, but it does so briefly. It begins by recalling the Committee’s report on The Union and Devolution which emphasised the deep asymmetry of devolution within the United Kingdom and the concomitant complexity in the range of shared and overlapping competences across the UK. In light of these intricacies, the potentially highly sensitive nature of the issues surrounding devolution in the Bill and the extent to which “the European Union has been, in effect, part of the glue holding the United Kingdom together since 1997”, the Committee recognises that the devolution dimension of the Bill needs a much more detailed and systematic assessment than is possible in an interim bill report. It therefore largely defers consideration of the extent to which the Bill affects devolved competence and the issue of legislative consent until its forthcoming inquiry where the Committee will more fully consider the constitutional implications of the Bill for the devolution settlements.


Concluding remarks

It is difficult to overstate the constitutional importance of the EU (Withdrawal) Bill. For all that it is presented by some as mechanical device that will “cut and paste” EU law so as to make it part of domestic law, and for all that it is regarded by others as a purely technical measure that enables dull but necessary behind-the-scenes legal rewiring to be accomplished, it is, in fact, one of the most constitutionally significant pieces of legislation to come before Parliament in several decades. And, just as it is hard to exaggerate the constitutional import of the Bill, it is difficult to overestimate the constitutional concerns to which it gives rise. In its report, the Committee concludes that the Bill “is highly complex and convoluted in its drafting and structure”, that it is “drafted in a way that renders scrutiny very difficult”, and that “multiple and fundamental constitutional questions are left unanswered” by it.
The Committee will return to those questions when it conducts its forthcoming inquiry on the Bill. But, for the time being, the Committee’s interim report serves as an important warning that the Bill, as presently drafted, is deeply flawed, and that it risks bequeathing a post-exit legal system that affronts both the rule of law and the separation of powers. As the Bill now begins its passage through Parliament in earnest, it will be for MPs and peers to decide whether fundamental constitutional principle ought to be sacrificed on the altar of Brexit. This is not, of course, to suggest that Brexit cannot be accomplished in a constitutionally satisfactory manner; but if that objective is to be secured, the Bill will need to be subject of radical surgery as it progresses through Parliament.
Mark Elliott is Professor of Public Law at the University of Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They serve as Legal Advisers to the House of Lords Constitution Committee. This post is written in their personal capacities.

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