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.