The EU (Withdrawal) Act became law on 26 June 2018 and contains over 10 pages of provisions on the nature and legal status of ‘retained EU law’ in UK law.
These lengthy and detailed provisions outline the new constitutional framework for law-making in the UK after Brexit on subject areas that have been EU competences, such as equalities protections.
Under the EU (Withdrawal) Act, many types of ‘retained EU law’ effectively have the status of secondary or delegated legislation in the UK. Primary legislation are Acts passed by Parliament after many stages of scrutiny, whereas delegated legislation is made by ministers using powers delegated to them by Parliament.
Delegated legislation receives less rigorous parliamentary scrutiny than primary legislation and Parliament cannot amend delegated legislation, so if Parliament is concerned by one aspect of a piece of delegated legislation, Parliament can only reject the delegated legislation in full. As Hansard Society has explained, it is extremely rare for Parliament to reject delegated legislation: the Commons has only rejected 11 pieces of delegated legislation since 1950, while the House of Lords has rejected six.
Under the EU (Withdrawal) Act much ‘retained EU law’ can be changed by delegated legislation made by Ministers exercising powers given to them under existing and new primary legislation. The Act not only creates new categories of UK law — ‘retained EU law’ — but also creates new parliamentary procedures for making delegated legislation under the Act.
Consequently, the EU (Withdrawal) Act must be understood as a mini-constitution for law-making in the UK, which came into effect when the Act received royal assent on 26 June 2018. It gave ministers delegated law-making powers to change retained EU law, many of which were so-called ‘Henry VIII powers’ because they allow ministers to change primary legislation through delegated legislation.
The scope of these delegated law-making powers in the Act will be established over time as those powers are exercised by ministers and, perhaps, challenged in the courts.
Similarly, the effect of the changes that the EU (Withdrawal) Act made to delegated law-making powers in other existing primary legislation — so that those existing delegated powers could be used by ministers to change retained EU law — will also be understood over time as those expanded powers are used.
However the scope of these powers is ultimately defined, the EU (Withdrawal) Act constitutes a profound shift in the UK constitution from law being made by Parliament to law being made by ministers.
The process of devolution in the UK has taken place in the context of EU membership, and the EU has provided shared overarching legal and governance frameworks for areas such as agriculture.
Prior to the 2016 referendum, there were weak inter-institutional relationships and structures for interactions between central government institutions and devolved institutions. Since the referendum relations between the devolved nations and central government have been characterised by a lack of shared understandings or perspectives.
There is likely to be a complex process for establishing and developing post-exit ‘common frameworks’ of shared governance for subject areas where there is some element of devolution — these common frameworks are a new concept in the UK constitution.
The changes to the UK constitution resulting from Brexit are not finished, and although the final outcome on a Brexit deal is not yet known, what is certain is that there will be further constitutional changes.
The government’s white paper on the EU Withdrawal Agreement Bill reflected my conclusions in a paper for the Hansard Society on changes needed to the EU (Withdrawal) Act to accommodate a transition/implementation period.
The complex constitutional framework needed for the termination of the UK’s EU membership has yet to be finalised. Furthermore, if there are areas in which the UK and EU agree to have legal harmonisation or alignment as part of their future relationship, for example under a ‘common rulebook’, then this will need to be reflected in UK legislation and may well have constitutional consequences just as the European Communities Act was a constitutional statute.
How can stakeholders engage with the process of changing retained EU Law?
Legal standards and protections in many areas such as labour law, equalities, consumer safety standards, and the environment, are the product of the combination of UK and EU law, which have become intertwined since the UK joined the European Communities in the 1970s.
Stakeholder organisations that work in these areas helping people understand and secure their rights have important knowledge to contribute to legislative changes in their areas of expertise.
In some cases, laws for Brexit will be made by primary legislation. For example the Agriculture Bill has been heralded as the key instrument for legal changes concerning agriculture, although the Bill itself makes relatively few changes to the law and instead gives numerous powers to ministers to change the law through delegated legislation. But as explained above, the effect of the EU (Withdrawal) Act is that many changes to the law will be made by ministers through delegated legislation.
Because of this new constitutional framework for Brexit law-making, the place where most changes to retained EU law will be made is not in Parliament, but in Whitehall government departments at the hands of ministers. Accordingly, stakeholders will need to monitor and engage with government departments to contribute to Brexit law-making.
There is a new process for Parliament to look at much of the delegated legislation under the EU (Withdrawal) Act through sifting committees in each House of Parliament.
The new sifting committee in the House of Commons is encouraging the public to submit comments to inform the committee’s work, and the House of Lords committee undertaking sifting also welcomes comments from the public.
However, there are already concerns that the government will ignore Parliament’s recommendations for how this delegated legislation should be scrutinised without giving reasons until after the delegated legislation is made, and thus undermine the parliamentary safeguards for this law-making process.
We need to talk about the constitution
Questions of constitutional processes, structures, and frameworks are being resolved in an ad hoc fashion as an incidental by-product of addressing the substance of Brexit. For example, the legal status of ‘retained EU law’ — entirely new categories of laws in the UK legal system — received almost no debate in the House of Commons during consideration of the EU (Withdrawal) Bill, whereas UK membership of a customs union with the EU or the EEA single market received much more attention from MPs.
Similarly, the constitutional frameworks for parliamentary consideration of international treaties with domestic legal consequences, such as trade deals, have tended to be under-examined.
Fundamental constitutional questions such as how laws are made in the UK warrant public discussion in all four nations and the regions of the UK so that the process is informed and considered.
Mechanisms for these constitutional discussions are few at present, but Brexit is a moment that provides an opportunity for, and makes a necessity of, talking about the constitution.