At an evidence session with the Minister for the Constiution in March, the Lords’ Constitution Committee discussed introducing constitutional impact assessments for government bills. Here, Jack Simson Caird discusses the potential benefits of such a process on the forthcoming bill legislating for a Withdrawal Agreement, and how it might have affected the passage of the European Union (Withdrawal) Act.

On 24 July 2018, the government published its White Paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union. In the introduction Dominic Raab, the recently appointed Secretary of State for Exiting the European Union, explained that the White Paper would outline the government’s approach to the European Union (Withdrawal Agreement) Bill (the Withdrawal Agreement Bill), which parliament must pass before exit day to implement the Withdrawal Agreement. Raab explained that the White Paper demonstrated the government’s ongoing commitment to ‘proper parliamentary scrutiny of our exit from the EU’.

Earlier in the year on 14 March 2018, Chloe Smith MP, the Minister for the Constitution, noted in evidence to the House of Lords Constitution Committee, another way in which the government could show such a commitment:

The second point your comment raises is the idea of whether there ought perhaps to be a constitutional impact assessment of every Bill, in the same way as we do an equality impact assessment, an environmental impact assessment or what have you.

This post examines how a constitutional impact assessment might enhance parliamentary scrutiny of the Withdrawal Agreement Bill. In doing so, I look back at the lessons of the scrutiny of the European Union (Withdrawal) Act 2018 (the Withdrawal Act), which received Royal Assent in June 2018, nearly a year after it was introduced to the House of Commons in July 2017.

What is a constitutional impact assessment?

A constitutional impact assessment would be an official government publication which would set out how the provisions in a bill would impact upon the UK’s constitutional arrangements. For example, it could set out a bill’s implications for devolution, for human rights, for the role of parliament, and for the courts. At present, the government publishes such information in a variety of formats: in explanatory notes, through a Delegated Powers Memorandum, and through correspondence with parliamentary committees.

The advantages of constitutional impact assessments would be threefold: they would bring the information together in one place; the format would enable the government to go into more depth on the constitutional implications of a bill; and it would be published when a bill is first introduced to either House. These advantages could serve to accelerate the scrutiny process, so that rather than parliamentarians and parliamentary committees having to ask the government for the constitutional reasoning behind particular provisions, this would be set out by the government at the very outset.

Accelerating the scrutiny of constitutional issues within bills could lead to them being explored in greater depth during their passage through parliament. The earlier such issues are identified, the more likely it is that they can be scrutinised effectively, and alternative legislative solutions can be put forward.

The parliamentary debate on landmark constitutional legislation over the past 40 years, particularly relating to the European Union, has not always managed to identify the principal constitutional implications. Both the European Communities Act 1972 (EC Act) and the European Union Referendum Act 2015 were enacted without significant debate on what were predictable constitutional consequences of the changes proposed. In those cases, the government tended to underplay the extent to which EU law curbed domestic constitutional autonomy.

In the Brexit context, there is a risk that the government will overplay the practical effect of the UK’s post-Brexit constitutional autonomy.

The European Union (Withdrawal) Act 2018

In the Brexit context, there are important lessons to be learnt from the parliamentary scrutiny of the Withdrawal Act.

When the ‘Great Repeal Bill’ (the Withdrawal Bill) was introduced to the Commons in July 2017, the government put forward two seemingly contradictory arguments for the legislation. The government emphasised the content of the Withdrawal Bill was intended to maximise legal certainty by converting EU law into domestic law on exit day. However, the government also claimed that the Withdrawal Bill was designed to enable domestic institutions to ‘take back control’. This meant repeal of the EC Act on exit day, the removal of the Charter of Fundamental Rights from domestic law, and instructions to domestic courts on the role of the EU’s Court of Justice after exit day. One of the major challenges for anyone tasked with analysing the Withdrawal Bill was evaluating how the provisions corresponded to the government’s position on both the Withdrawal Agreement and the UK’s ‘Future Relationship’ with the EU.

Theresa May’s Lancaster House speech in January 2017 revealed that the government intended to seek a transitional period, which would mean that after exit day (29 March 2019), EU law would continue to apply for a time-limited period as if the UK was still a member of the EU. How could this be squared with the Withdrawal Bill, which did not provide for transition, and appeared to legislate as if the UK would be able to diverge from existing arrangements on the day after exit day?

One potential answer was that the Withdrawal Bill was drafted to function irrespective of the outcome of the negotiations. However, what was then clause 9 of the Withdrawal Bill pointed in a different direction, as it enabled the government to implement the Withdrawal Agreement through secondary legislation. This suggested that the Withdrawal Bill could be intended as a one-size fits all solution to prepare for exit day. However, this also seemed unlikely at the time, as the constitutional significance of what was likely to be included in the Withdrawal Agreement meant that it would almost certainly require further primary legislation in order to be implemented in domestic law.

Once this was understood, much of the political focus turned to the issue of parliament having a ‘meaningful vote’. This supplies another potential lesson for the scrutiny of future Brexit legislation. Even if a constitutional impact assessment had been published it would not have addressed what might be one of the Withdrawal Act’s most significant provisions. Section 13, which sets outs parliament’s role in approving the Withdrawal Agreement, only appeared  in June 2018 during ‘ping-pong’, leaving little time for it be scrutinised before it was enacted.

The EU (Withdrawal Agreement) Bill

On 13 November 2017, long after views on the Withdrawal Bill had been firmly formed, the government announced that another major Brexit bill, which is now known as the Withdrawal Agreement Bill, would need to be enacted before exit day. The Withdrawal Agreement Bill, rather than what is now the Withdrawal Act, would provide for the implementation of the Withdrawal Agreement, including any transitional period.

The White Paper on Legislating for the Withdrawal Agreement sets out that some of the specific changes that the Withdrawal Agreement Bill will make to the Withdrawal Act. Most significantly, the legal effect of the EC ACT 1972 would be saved until the end of transition. This would ensure that during transition, and after exit day, EU law would operate as it does currently. Repealing the Charter of Fundamental Rights and changing the role of the Court of Justice will be delayed until the end of transition. Much of the legal effect of the EU (Withdrawal) Act 2018 would not kick in on exit day, as many had initially understood, but at the end of transition on 31 December 2020.

Looking back on the initial debates on the Withdrawal Bill, many parliamentarians and experts had misunderstood how its provisions would work. Much of it was intended, as long as a Withdrawal Agreement was secured, to deal with the end of the period of transitional arrangements in several years time, rather than to prepare for exit day on 29 March 2019.

Constitutional impact assessments and Brexit legislation

Would a constitutional impact assessment, published alongside the Withdrawal Bill in July 2017, have made any difference? It is difficult to say. If an impact assessment had been required, it seems unlikely that the government would have been able to outline how the provisions might work in a range of different Brexit scenarios. Further, the Delegated Powers Memorandum that accompanied the Withdrawal Bill explained that the legislation was structured in way so that the government would not have to reveal its negotiating objectives. A constitutional impact assessment may well have made the same point.

Asking parliament to legislate to cover for multiple outcomes to the Brexit process was undoubtedly necessary in this context. Legislation designed in this way is difficult to scrutinise. Parliament has had to pass legislation without knowing how it will be used. When the Withdrawal Agreement Bill is introduced to parliament, parliamentarians will have a clearer sense of how the legislation will work during transition. However, the post-transition framework will remain difficult to visualise.

The European Union (Withdrawal) Act 2018 highlighted an important fact about parliament’s role in the Brexit process. Parliament cannot shape the form of Brexit through legislation. Parliament’s Brexit legislation will be shaped by the agreements negotiated by the government, using its prerogative powers, with the EU. Parliament has the right to accept or reject these agreements, but no direct role in shaping their content.

Conclusion

The government’s White Paper on the Future Relationship with the EU (known as the Chequers White Paper) sets out that the Treaty on the Future Relationship will be scrutinised in parliament when implementing legislation is introduced before the end of transition. This means that further amendments to the EU (Withdrawal) Act 2018 are likely before 31 December 2020.

The Chequers White Paper sets out that the Treaty on the Future Relationship might be composed of multiple agreements, for example on economic cooperation and a security partnership, operating under an overarching agreement. Each of these agreements will need implementing legislation. This indicates that the Withdrawal Act 2018 could be only the first step in a rolling programme of legislation designed to implement the UK’s new relationship with the EU. The Withdrawal Agreement Bill is going to be the second step, but it is likely that depending on the negotiations, it will not be the last.

When the Withdrawal Agreement Bill is presented, parliamentarians should think about how its provisions could operate in different scenarios, and how it might be affected by subsequent agreements and legislation.

About the author

Dr Jack Simson Caird is Senior Research Fellow in Parliaments and the Rule of Law at the Bingham Centre for the Rule of Law.