Today sees the start of two days of debate in the House of Lords as the EU (Withdrawal) Bill has its second reading stage. Ahead of that debate, the Constitution Committee of the House of Lords has produced a report on the legislation. In this blogpost Baroness Taylor, who chairs the committee, explains that the Bill as currently constituted has major flaws that could cause serious constitutional problems if left unamended.

Brexit presents an unprecedented constitutional challenge for the UK. In order to achieve a smooth departure from the European Union, it is essential that there is legal certainty and continuity on exit day. The European Union (Withdrawal) Bill (the Bill) is the government’s attempt to achieve this. It attempts to deliver certainty by preserving existing EU law as it currently applies in the UK and converting it into domestic law. This is a legal undertaking of a type and scale that is unique and it poses significant challenges for both parliament and the government.

The House of Lords Constitution Committee gave early consideration to these challenges in its ‘Great Repeal Bill’ and delegated powers report and its interim report on the Withdrawal Bill itself. We are disappointed that the Government has not addressed our earlier concerns and recommendations and, as it stands, the Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. The Committee’s latest report, published yesterday, explores the constitutional deficiencies of the Bill in detail, and offers a number of constructive solutions to improve this essential legislation.

At present, the Bill risks fundamentally undermining legal certainty in a number of ways. The creation of ‘retained EU law’ (existing EU law in a new domestic form) will result in problematic uncertainties and ambiguities as to what it contains and how it relates to other domestic law. The Bill fails to give sufficient clarity and guidance to the courts as to how retained EU law is to be interpreted after the UK leaves the European Union and it seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit.

In our report, we examine ways of addressing these issues. We recommend giving all ‘retained EU law’ the status of primary legislation, as this will provide clarity as to how it relates to other domestic law and existing constitutional principles. It prevents retained EU law from being amended by most of the delegated powers that already exist in other legislation. It also addresses the problem of the ‘supremacy’ principle in the Bill. The supremacy of EU law is a European legal concept rather than a domestic one, and perpetuating it after exit day does not fit comfortably with existing constitutional and legal principles. However, for legal continuity, existing EU law must continue to have precedence over pre-exit domestic law. Our proposal, to treat retained EU law as primary legislation, and to consider it to be ‘enacted’ on exit day, achieves this goal, in line with the doctrine of parliamentary sovereignty and the domestic principle of the primacy of the most recent Act of Parliament.

We highlight concerns about the delegated powers in the Bill. The Bill grants ministers overly-broad subjective powers to do whatever they think is ‘appropriate’ to correct ‘deficiencies’ in retained EU law, giving them far greater latitude than is constitutionally acceptable. We propose a revised formulation for the use of the powers, suggesting that when ministers consider it ‘appropriate’ to use the powers they must lay before parliament a statement setting out the ‘good reasons’ for the regulations and explaining why this constitutes a ‘reasonable course of action.’ We also recommend that the minister introducing the regulations should certify that it does no more than make technical changes to retained EU law, and that no policy decisions are being made.

It is imperative that appropriate mechanisms are in place to enable parliament to meet the challenge of scrutinising regulations that will flow from this legislation, however we find the scrutiny system proposed for the powers in this Bill to be inadequate. While we welcome the creation of a sifting committee(s) to examine the regulations, we recommend that the committee(s) should be empowered to set the scrutiny procedure, rather than just advise on it, in order to provide the necessary parliamentary oversight.

The Bill also has significant consequences for the devolved administrations and their relationship with the UK government. The UK government and devolved institutions urgently need to secure political agreement on the approach to devolving power in the Bill, as failure to secure legislative consent would have significant constitutional repercussions. We recognise that only once a political agreement has been reached can amendments to the Bill be finalised.

The Bill, as drafted, is constitutionally unacceptable. However it can be amended to make it both more appropriate and effective. Our report offers a detailed set of recommendations to help address practical problems in the Bill, overcome the serious constitutional concerns that we have identified and give effect to the government’s aims in a way that is compatible with fundamental principles, in particular the sovereignty of Parliament.

About the author

Baroness Taylor of Bolton is Chair of the House of Lords Constitution Committee.