Implications of the EU (Withdrawal) Bill

The European Union (Withdrawal) Bill has now been introduced and the Commons is having a two-day debate on Second Reading.  There are as yet no Commons select committees set up and membership agreed (unlike in the Lords, where all committees are up and running), so the Bill has received no detailed scrutiny by the Commons Brexit Committee.

The Lords Constitution Committee reports on Bills of constitutional significance, but does not usually do so until they are introduced in the Lords.  However, because of the constitutional significance of the measure, the Committee has published an interim report on the Bill.  It is embarking on a more detailed inquiry.  The interim report identifies the key constitutional issues raised by the Bill’s provisions.

There are three key constitutional concerns: the relationship of Parliament and the executive, ensuring legal certainty, and the implications for the devolution settlement.  The concern is with the contents of the Bill.  There is some confusion in current debate about means and ends.  There was a majority in the 2016 referendum for the UK to leave the EU.  The Government is seeking to give effect to that decision.  A consequence of withdrawal is the need to deal with the accumulated body of law derived from the EU, a large and complex body enacted through different mechanisms.  This is not an easy task and the Bill is not simply a ‘technical’ measure.  It is crucial that we get the process right, both in terms of ensuring proper parliamentary scrutiny of changes proposed by Government and in terms of ensuring legal certainty.  The Bill raises serious problems in respect of both.

Anyone who thinks that it is a fairly straightforward process should read the interim report and bear in mind that it is an interim report.  Our main report will go into more depth as to the implications of the Bill’s provisions.  The Bill really is highly complex and convoluted.  It introduces a new form of law, the status of which in respect of the existing hierarchy of UK law is unclear.  The powers delegated by the Bill are remarkably broad.  As the report states: ‘The number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau od effectively unlimited powers upon which the Government could draw’.  Adequate safeguards on the use of Henry VIII powers are not provided.  None of this is to challenge the principle of the Bill.  It is a case of getting right the process for achieving that principle.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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30 Responses to Implications of the EU (Withdrawal) Bill

  1. alanbellubuntu says:

    Have you tried it out on a real EU regulation? The government needs to show what the result of “fixing” a real regulation looks like. Does it generate law of a quality that will stand up in court and last for centuries? They also need to do this for a decent sized random sample (maybe 100 or so) and then from that test demonstrate that the time to transpose the entire corpus into valid comprehensible UK law is less than the two years they have requested for the superpowers.

  2. dbfamilylaw says:

    So long as you treat the outcome of the referendum as a ‘decision’ you will misunderstand the whole process. It was advice from a proportion of the electorate which – as with any advice – MPs and members of the Lords are entitled to follow or not as they see fit. The decision is that of Parliament alone. At present – despite the views of most of the MPs and Lords – members of both Houses seem willing to vote the opposite way to their own judgement and like you regard it as ‘the will of the people’ or the ‘decision’ of the electorate.

    • Croft says:

      “So long as you treat the outcome of the referendum as a ‘decision’ you will misunderstand the whole process. ”

      No you misunderstand constitutional evolution. Whatever the historic practice we have now had a number of referendums none of which parliament has ignored to the extent that we now have a convention that they will not be ignored.

      • dbfamilylaw says:

        Yes, you need not ignore: that would be rude; but it does not mean you have to follow advice. That is to misunderstand the meaning of ‘advice’ and for fail to distinguish between adive and what is binding. I cannot bind my clinent to follow my advice, any more than – in a representative deocracy – representatives can be bound to follow their electors. (Lords don’t have to follow anyone; but they are only part of a democratic tradition by accident.)

      • Croft says:

        ” but it does not mean you have to follow advice. ”

        You do – that’s the bit about conventions – there might be no legal force but parliament accepts it is bound nevertheless.

  3. Linklaters, the law firm, have done an excellent report on this bill, which I would definitely recommend. It makes some create suggestions for improving the bill, providing additional legal certainty and removing some of the excessive Henry VIII powers:

    http://www.linklaters.com/pdfs/Linklaters%20-%20The%20Great%20Repeal%20Bill%20-%20Domesticating%20EU%20Law.pdf

  4. Croft says:

    I’m bound to say that having Lord Pannick as a member of a committee trying to influence legislation he could well be litigating on is problematic.

    On the substance: The report seems to engage in a touch of cognitive dissonance. It keep saying how wide powers are needed and that the government needs to be able to act with speed given the timeframe but then proceeds to in practice try to ensure that the government is hobbled in doing either. It talks of legal clarity but then – especially around JR – proposes rejecting a general power that give working space and legal cover/clarity for over tightening of the definitions that are wholly certain to ensure judicial review attempts with the prohibitive delays they bring. That may well suit those members that oppose brexit but does nothing to ensure the smooth application of the bill.

    I have a general feeling of cynicism about much of this debate in that I keep hearing from politicians who have had a miraculous Damascene conversion to parliamentary sovereignty; who never batted an eyelid when previous governments used H8 powers or SIs or indeed when EU laws passed into UK law without a vote in parliament but are now filled with moral outrage at the thought of the this being done with brexit. (BTW – I note with some amusement that SIs are now suddenly purely minor/technical according to general consensus – a brief history of there past use shows they were/are nothing of the sort.)

    Personally, I think the governments majority is a more certain restraint on the (mis)use of the power in the bill that any statutory framing could ever be and thankfully lacks the issues of vexatious litigation that an overly complex implementation of the latter seems bound to produce.

    I generally favour sunset clauses as they are legally simple. Give the government wide powers to ensure they can get what they need done without litigation (see above) but for such a short period that they will only have time for the most important Acts to be considered in this manner.

    • tizres says:

      I agree with all the above.

      I doubt that the level of debate in the Commons will be enhanced by an all-nighter on Monday and, after a series of points of order on extending the hours, I’m not convinced that Parliament has been enhanced, let alone the Government. For goodness’ sake, parliamentarians should drop their personal ambitions and start behaving as if they give a damn about the UK.

      • tizres says:

        Apologies, considering the importance of the subject, I’ve tried to play nice but I am furious with Mr Corbyn’s tactics, and can someone explain the difference between Mr Starmer’s ” forensic dissection” of the Bill and sub-standard phishing?

      • Croft says:

        Certainly the LP position is absurd. You can’t claim to support leaving the EU then vote against the bill as a whole. You could support the bill and then vote in 3R for/against amendments.

  5. maud elwes says:

    @ LN.

    I have written here on your blog, a few minutes ago, asking if discussion on the transference of EU 2013-043 ~ Agenda 21, is going to be discussed by Parliament, in both Houses, prior to being introduced as British Law. My post simply disappeared from sight. Has this subject ever been acknowledged or approved in EU Law by our House of Commons, or, House of Lords?

    I had added links to explain my question..

  6. maud elwes says:

    A link to the issue at hand. Transferring EU Law to British Law.

    http://www.theeuroprobe.org/2013-044-couden/

  7. tizres says:

    Meanwhile, perhaps we should each pursue one or more issues that are important to ourselves and start writing. And, yes, I am.

  8. Dean B says:

    For context I think it’s important to note that even as the Bill stands, it would represent a substantial democratic improvement over the status quo. Currently, parliament has no say whatsoever in any of these areas, not even the so called “negative” procedure. Any say at all is an improvement. Moreover the body that will be exercising these powers – the government – is one over which parliament has ultimate control, including that of dismissal. It has none over the EU. Whilst the Bill is not perfect, even unamended it represents an improvement on what currently exists.

    • Croft says:

      What you say is both wrong and right (in parts). At present large portions of EU law become UK law without any votes whatsoever – and the courts can strike down acts of parliament that don’t comply with EU law. [This is the problem with Labours position: their MPs are ‘synthetically outraged’ over the UK government doing much that the EU has always done]

      What can’t happen via the EU at present is – as contained in this bill- a general right to amend bills. That is a significant move, though h8 powers are by no means so rare as people think.

      I did read the report above and its predecessor. The issue I have with is they seem unrealistic. Yes in an ideal world parliament could choose whether to vote on every issue but we are on an astonishingly tight time frame so even if desirable its not practical. Attempts to develop different procedures to deal with different parts of EU law changes and define the governments powers very tightly seem designed to fail. The interaction of directly applicable EU law, EU law passed via ECA, Acts to meet EU law, SIs under the previous 2 and Acts not required under EU law but ancillary to or dependent upon some of the former is fiendishly interconnected. So to try different procedures and parliamentary vote requirements to handle different bits seems like playing a dangerous game of jenga even before the whole thing gets gummed up by vexatious judicial reviews over which procedures apply to which bit. The courts will end up in being in charge not parliament; MPs can always bring the government down so they always have a backstop if they need it.

      On a separate note the proposal to prevent ministers activating the bills ECA repeal clause seems a naked attempt to build in a brexit veto by the back door.

      • Dean B says:

        I’m not sure I understand how the general right to amend puts parliament in a worse position than now. It will still be the case that parliament has no say. All that is changing (from Parliament’s perspective) is who decides, and the process for those that do. I don’t see how it’s in a worse position. Indeed, because parliament has ultimate power over the government, it will be in a better position.

      • Croft says:

        @Dean B: Simples – The EU can’t amend primary legislation – the present bill gives the government that power.

      • Dean B says:

        Is that a substantial difference or a semantic one? The EU can introduce legislation which is enforceable by our courts in the same way as primary legislation, no?

      • Croft says:

        Substantive. While our courts can strike down our law for non compliance with EU law it cannot strike down matters not subject to EU law. (Although given the judicial activism of the ECJ the latter category might be illusory see ECJ:Åklagaren v Fransson). The bill as it stands allows the government to amend primary legislation – and indeed the Act itself! So it is very powerful, though, as I indicated above a power I don’t see any practical alternative to in the very short pre-brexit period.

      • Dean B says:

        Hope you don’t mind me pushing this, I am keen to learn. “While our courts can strike down our law for non compliance with EU law it cannot strike down matters not subject to EU law. “. But all the matters covered by this Bill are subject to EU law, surely? So there won’t be any areas where parliament loses an existing right? Will there?

      • Croft says:

        The Scope of this bill at present allows amendment of (almost) Acts of parliament not just those specific required to implementation of EU law. So its is wider than just those areas currently subject to EU law. (Rightly so imo, there is clearly overlap and danger of matters falling through the cracks otherwise)

      • Croft says:

        Perhaps an loose example: Immigration is covered in a number of ways by EU law directly and indirectly. But we also have legislation relating to non-eu immigration matters – sometimes in the same acts sometimes in separate acts. There are also acts relating to tax status of both groups against various other acts. Clearly you need to be able to amend (potentially) all those acts because they are going to be impacted by Brexit directly or indirectly. EU law and the ability of the government to change it would only cover part of that

      • Dean B says:

        I see, thank you for the example, that clarifies a lot. Even in those examples, it would take a pretty brazen govt to make amendments that don’t obviously relate to Brexit, however I accept now that in theory at least the danger exists. No doubt the govt will concede small changes to the Bill, but as you have said, much of what is in there is probably necessary.

      • Croft says:

        @Dean [I ought to add immigration is being dealt with in a separate act but it was an sample example) If the government had a decent majority I could see more grounds for concern. But with the majority they have I don’t see they really have much room to abuse the intent of the powers.

        I note elsewhere that apparently (i’ve not checked!) Henry8 powers were used to amend primary legislation 98 times in the last session of parliament and 96 new Henry8 clauses were added in bills.

    • Croft says:

      I should add I don’t doubt LNs bona fides here. I do doubt it elsewhere in the Lords. Since the parliament act can’t be used for SIs and the Lords has a colossal remainder majority I’m deeply cynical about the ‘demand’ for votes being more than a proxy for attempts at wrecking procedures.

      • tizres says:

        I’m very grateful to Dean & Croft for the informative exchange.

        I’m concerned with the the ‘grab back’ of powers from devolved gvts to Westminster. As none have the same existing powers, is Brexit an opportunity for the devolved gvts to work together (as they are increasingly doing now) and forge a federal system, or has their time come and gone?

      • Croft says:

        @Tiz: Is it really a grab back though? I think the SNP are creating a synthetic grievance as usual. Essentially they are arguing that a power they don’t have and is presently exercised by EU but could now be exercised by the UK government is being grabbed!

        Since any new trade deals will have to be negotiated nationally and there must be legal identical enforcement the demands for them to be devolved are wholly unrealistic. But then I think those demanding it know that perfectly well

      • Croft says:

        On your federal point – I don’t see how that is viable in the UK. It works where in very broad terms the constituent parts are equal or at least not so grossly unequal. In the UK England is 80+%. Any system which allow the 19% to veto the 80% while demanding that the 80% subsidize the 19% as at present gets very tricky. We already have the situation of Sco spending money on services that are denied on cost grounds in Eng paid for by transfers from Eng.

      • tizres says:

        The closer working between the SNP and Plaid Cymru may be just another fig leaf; their positions on trade are all over the place.

        Gently amusing: https://www.legalcheek.com/2017/09/i-am-mid-sentence-brexit-case-barristers-clash-in-house-of-lords-debate/

  9. maude elwes says:

    Search Article 62 of the Vienna convention on the Law of Treaties terminating over sign up of the Lisbon Treaty on the grounds of fundamental change of circumstances. Namely the#British people have withdrawn their consent to be bound by The Lisbon Treaty. No Lisbon Treaty sign up = not a member of the EU. Formal notification is all that is necessary.

    http://www.mpil.de/files/pdf3/beitr2452.pdf

    I wrote a fuller post covering more of it. But, it somehow didn’t make the thread. This suggests we can be out of the EU quickly within the realms of this Article’s information.

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