In this post, Jack Williams of Monckton Chambers discusses a new report from the House of Lords Select Committee on the Constitution concerning the constitutional issues surrounding the legislation for the UK’s withdrawal from the EU and thereafter.
The House of Lords’ Select Committee on the Constitution has published a new report entitled: “Brexit legislation: constitutional issues”. This post summaries and discusses its key findings.
First, the Committee highlights the “considerable amount of further legislation” still needed to implement the UK’s withdrawal from the EU and the UK’s future relationship with the EU. The report includes a helpful table, which summarises the relevant legislation already enacted and that which is yet to pass through Parliament. In summary:
- The relevant Acts go beyond the well-known the EU (Withdrawal) Act 2018 (“EUWA18”) and the EU (Withdrawal Agreement) Act 2020 (“EUWAA20”)), which provide the framework for the UK’s withdrawal and post-transition law. Other relevant Acts include: the Sanctions and Anti-Money Laundering Act 2018, the Taxation (Cross-border Trade) Act 2018, the Haulage Permits and Trailer Registration Act 2018, the Healthcare (European Economic Area and Switzerland) Act 2019, European Union (Withdrawal) Act 2019, European Union (Withdrawal) (No. 2) Act 2019, and the Direct Payments to Farmers (Legislative Continuity) Act 2020. Each of these Acts is linked to on the relevant resources page of this website.
- The relevant Bills presently progressing through their legislative stages include: the Agriculture Bill, the Environment Bill, the Extradition Bill, the Fisheries Bill, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, Medicines and Medical Devices Bill, Private International Law (Implementation of Agreements) Bill and the Trade Bill.
Second, the Committee has “concerns” about sub-sections 5(A) – 5(C) of section 6 of the EUWA18 (added by section 26 of EUWAA20), which empower ministers to determine which courts can depart from CJEU case law after the transition period and the applicable tests for such departures. As originally enacted, section 6 of the EUWA18 stated that retained EU law was to be interpreted in accordance with any “retained EU case law” i.e. CJEU case law applicable on or before exit day. Only the Supreme Court or Scottish High Court of Justiciary would have had jurisdiction to depart from the CJEU interpretations of retained EU law – in doing so they would apply their existing rules on departing from their own previous domestic case law. Now, however, the UK Government can make regulations setting the terms on which departures from retained EU law can be authorised, including by other courts. The Committee has “substantial constitutional concerns” about such a provision, which it says is “inappropriate”: there is, in the Committee’s opinion, “significant risk that the use of this ministerial power could undermine legal certainty and exacerbate the existing difficulties for the courts when dealing with retained EU law”. As such, the Committee has called on the Government to publish in draft any such regulations as a matter of priority.
Third, the Committee expresses further “concern” about delegated powers in the EUWA18 and EUWAA20, including so-called Henry VIII powers allowing primary legislation to be amended by statutory instruments. Indeed, the Committee describes many of the relevant pieces of legislation as “skeleton bills”, inhibiting parliamentary scrutiny and granting ministers “overly-broad” powers to do what they deem appropriate. In particular, the Committee notes – with particular reference to the Haulage Permits and Trailer Registration Act 2018 – that the creation of criminal offences and the establishment and empowerment of public bodies by delegated powers is in general “constitutionally unacceptable” and “nor should delegated powers be used to change in any significant way the category of a criminal offence or to increase the level of punishment”. Moreover, the Committee records its concern that Acts and Bills subsequent to the EUWA18 do not, unlike that Act, include the same Parliamentary scrutiny process for such delegated powers.
Fourth, the Committee criticises the use of open-ended and illustrative provisions in the relevant legislation, for example the “inappropriate” use of non-exhaustive lists and drafting techniques such as “for example” and “among other things”. This is, to say the least, peculiar language for primary legislation. Whilst it is not listed in the report, one example of this is Section 7C(2) EUWA18, which states: “See (among other things)— …” The Committee notes the “complexity” of the relevant legislation and the concept of “retained EU law” in the EUWA18, in particular. Indeed, there are many ambiguities and difficulties in interpreting provisions in the EUWA18 (see, for example, here discussing the role of Directives in retained EU law and the meaning of section 4). Such opened-ended and illustrative provisions only add to that complexity and highlight the importance of scrutinising carefully the delegated legislation issued.
Fifth, the Committee states that “it is regrettable that legislative consent was not achieved for many of the Brexit bills. The UK and devolved governments should work to establish healthy cooperation and mutual respect in order to secure consent for the Brexit bills that are still to come.” It will be recalled, for example, that consent was withheld by the Scottish Parliament for what became the EUWA18. The Committee recommends that the Procedure Committee considers how legislative consent could be given greater prominence in the legislative process at Westminster.
It is clear that constitutional debates about the UK’s processes and law-making in connection with the UK’s withdrawal from the EU are far from over.
Share this post on social media: