The European Union (Withdrawal) Bill is likely to be the most constitutionally significant legislation presented to Parliament in a generation. The task of providing legal certainty and stability after the UK leaves the EU is considerable and it will have extraordinary implications that may last for decades to come.
Although a wide ranging bill was inevitable to address and resolve a complex set of legal issues, it is unfortunate that the Bill the Government has devised is convoluted and confusing in both its drafting and structure; and that it raises a series of fundamental constitutional concerns.
The Constitution Committee concluded that the Bill will need to be significantly amended in order to address these uncertainties and concerns. The Committee is not pro- or anti-Brexit; its primary function is to assess the constitutional implications of legislation and to look at how it might function – not just under the present Government, but governments in the future.
Prior to the publication of the Bill, the Committee looked at the issues it was likely to raise and made recommendations of how the Government and Parliament should approach the challenging task. In a recent interim report we concluded that many of our recommendations for constitutional safeguards had not been acted upon.
The Committee’s report set out that the Bill has implications for three major constitutional issues: the relationship between Parliament and the executive; the rule of law and legal certainty; and the stability of the UK’s territorial constitution.
Firstly, the breadth and scope of the powers delegated to ministers by the Bill are deeply concerning. Given the time constraints involved, delegated legislation will be needed to deal with the volume and complexity of the task, however, it is imperative that such powers are clearly and meaningfully limited.
Given the wide powers the Government seeks, it is unacceptable that very few restrictions are placed on their potential use. For example, the Bill would allow retained EU law to be amended to rectify ‘deficiencies’ arising from withdrawal, with considerable discretion for minsters to decide what constitutes a ‘deficiency’.
It is also essential that delegated powers are subject to appropriate safeguards and effective parliamentary scrutiny. As drafted, a vast array of decisions can be made using the negative procedure, for which no parliamentary debate is required and which MPs in particular have limited opportunities to challenge.
The Bill also allows ministers to use the ‘made affirmative’ procedure when they consider the matter urgent, which allows the law to take effect prior to any consideration or scrutiny by Parliament. For powers of such breadth and constitutional significance, it is deeply troubling that no enhanced parliamentary scrutiny procedures have been have been introduced.
The powers in the Bill potentially allow significant policy decisions to be made through the use of these delegated powers; decisions that parliamentarians will rightly expect to scrutinise and hold ministers accountable for. The absence of appropriate procedures for these powers risks a significant transfer of legislative competence from parliament to government.
Secondly, the capacity of the Bill to undermine legal certainty is considerable. It is vital to our legal system that the law is clear and coherent. However, this Bill contains multiple uncertainties and ambiguities which raise fundamental concerns from a rule of law perspective. For example, as drafted, the legal status of “retained EU law” and its relationship to domestic law is opaque and confusing, which is likely to give rise to litigation. It is also unclear which elements of retained EU law the supremacy principle will continue to apply to and how it will apply post-exit.
While the Bill claims to provide clarity on the status of CJEU judgments post-exit, Lord Neuberger, the outgoing President of the Supreme Court, recently warned that it should provide greater clarity and guidance to the courts on how the law should be developed after Brexit. A lack of clarity risks leaving the judiciary with the nearly impossible task of interpreting statute that is not clear in its intention; thereby undermining the rule of law and bypassing Parliament.
Finally, the UK’s departure from the European Union will have profound consequences for the devolution arrangements within the UK and there are concerns about the stability of the UK’s territorial constitution post-Brexit. The devolved institutions have raised concerns about the implications for the balance of power within the Union as a result of some powers being returned to the UK Government; and the Scottish and Welsh Governments have said they would not currently recommend that their legislatures consent to the Bill. It is vital that all parties work together to reach agreement on the Bill, as the political and constitutional consequences of proceeding without legislative consent from the devolved legislatures would be significant and potentially damaging.
Whilst we accept that difficult legislation is needed, the complexity and ambiguity of this Bill could have profound and damaging consequences. The extraordinary transfer of legal powers from Parliament to the Government, with no additional oversight is alarming and puts fundamental constitutional concepts at risk.
The significant constitutional questions left unanswered by the Bill are alarming and present a completely unique challenge for Parliament to scrutinise and amend it. The Committee will look at the Bill in greater detail in the coming months and report on it again when it reaches the House of Lords.