Addressing the constitutional flaws in the EU Withdrawal Bill: The view of the Constitution Committee

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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. Continue reading

The Lords and the EU Withdrawal Bill: 10 predictions

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The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived. 

The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:

Amendments are likely, right from the outset

1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes.  Continue reading

Trade Bill highlights parliament’s weak international treaty role

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On 9 January, the Trade Bill successfully passed its second reading stage in the House of Commons. Intended to regulate the implementation of international trade agreements after Britain leaves the EU, it is one of the most important pieces of Brexit-related legislation currently going through parliament. In this post, which originally appeared on the website of the Hansard Society, Dr. Brigid Fowler argues that the role of parliament in influencing the drafting and agreement of British trade treaties has the potential to be weakened, not strengthened by Brexit should this bill become law.

The Trade Bill, which had its second reading debate on Tuesday, is one of the most important pieces of Brexit legislation. It is a framework Bill enabling the UK to implement the non-tariff elements of future international trade agreements, where those agreements are with states with which the EU has signed a trade agreement by the date the UK leaves.

For non-tariff issues, the Bill is aimed at addressing the domestic legislative aspect of one of the most urgent Brexit questions: how to save, in less than 15 months, the preferential trade arrangements that the UK has through the EU with, according to the Bill’s impact assessment, at least 88 countries and territories, covered by perhaps 40-plus agreements.

The Bill’s broad aim is the same as that of the EU (Withdrawal) Bill – which has its report stage consideration in the House of Commons on 16–17 January – and indeed of the government’s overall Brexit approach: to minimise the disruption to business and consumers at the moment when the UK leaves the EU on 29 March 2019.

But, as regards trade agreements, the EU (Withdrawal) Bill on its own cannot do the job, because capturing the provisions of trade agreements that the EU might sign right up to Brexit day may require domestic implementing powers that last beyond those in that Bill.

Continue reading