The European Union (Withdrawal) Bill: constitutional change and legal continuity

The long-awaited ‘Great Repeal Bill’, to be known officially as the European Union (Withdrawal) Bill, was published last Thursday. The bill is a complex mix of constitutional change and legal continuity. Jack Simson Caird highlights some of its main elements.

Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017.

Constitutional change

The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the ‘conduit pipe’ through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:

  • the creation of a new distinct body of law known as ‘retained EU law’;
  • broadly-framed delegated powers for government to alter this body of law;
  • new instructions to the courts on how to interpret retained EU law; and
  • amendments to the legislation that underpin devolution.

Legal continuity

The government’s position is that the primary purpose of the bill is to provide a ‘functioning statute book’, ensuring legal continuity after exit day. The bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.

Balancing continuity and change

Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) ‘wholesale’ through this bill, the government has claimed that the general rule is that the ‘same rules and laws’ will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:

  • the delegated powers in the bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
  • a proportion of EU law will no longer apply once the UK is outside the EU;
  • the government is bringing forward a number of bills to make substantive policy changes in areas currently covered by EU law; and
  • preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU member state and subject to the full force of EU law.

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Ask the Experts: Legal and Constitutional Implications of Brexit

On 13 June UCL Public Policy and the House of Commons Library jointly hosted an ‘Ask the Experts’ event on the legal and constitutional implications of Brexit. The panel consisted of specialists from both institutions. Marc Phoon reports.

The possible economic and social consequences of Brexit were central features of the referendum debate and continue to be discussed widely. However, of equal importance are the legal and constitutional implications of Brexit, which may very well underpin the long term outcomes of the Brexit negotiations. ‘Ask the Experts: Legal and Constitutional Implications of Brexit’, an event jointly hosted by UCL Public Policy and the House of Commons Library on 13 June, aimed to provide some clarity on this matter.

The panel consisted of staff from both the House of Commons Library and UCL. Vaughne Miller is the Head of International Affairs and Defence at the House of Commons Library and an EU law specialist. She was joined by two of her colleagues, Arabella Lang, a treaty specialist and Jack Simson Caird, a constitutional law specialist and UCL alumnus. Ronan McCrea, a Senior Lecturer from the Faculty of Laws and Christine Reh, Reader in European Politics from the Department of Political Science, both based at UCL, completed the panel. Meg Russell from the Constitution Unit chaired the event. In introducing the panel, she emphasised the high-quality, reliable and digestible briefings publicly available from the House of Commons Library, as well (of course) as the materials available from the Constitution Unit, the UCL Brexit Hub and other UCL experts.

Vaughne Miller

Vaughne Miller kick-started the discussion by offering an overview of the differing approaches taken by the EU and the UK government ahead of the Brexit negotiations. The EU, through the European Commission and European Council, has already set out its priorities for the negotiations. It is particularly concerned with issues related to EU citizens’ rights post-Brexit, the border between Northern Ireland and the Republic of Ireland and the so called ‘divorce bill’ – i.e. the financial settlement between the UK and the EU. She noted that the EU has a clearer position than the UK government because of the EU’s laws on transparency, which mean that the majority of the negotiation guidelines coming from the EU will be publicly available.

Miller went on to explain that it is not yet clear how the UK parliament is going to be kept informed about the progress of Brexit negotiations. The government has indicated that the UK parliament will be kept at least as informed as the European Parliament. Nevertheless, MPs have signalled their expectations on this matter through a report published by the European Scrutiny Committee. Furthermore, because of the general election and summer recess, there are concerns about whether there will be adequate parliamentary scrutiny of the early stages of the negotiations. Notably, select committees in the Commons which scrutinise government departments are not likely to be properly established until September this year.

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The Constitutional Standards of the House of Lords’ Constitution Committee: A valuable tool for enhancing scrutiny

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To mark the launch of the second edition of The Constitutional Standards of the House of Lords Constitution Committee, Jack Simson Caird considers the role that a set of constitutional standards could play in the current government. Drawing on the example of English votes for English laws, he argues that such a code would increase the quality of scrutiny of proposed changes to parliamentary procedure.

The Constitutional Standards of the House of Lords Constitution Committee: Second Edition is available to read and download here.

Today the Constitution Unit, with the support of the Constitution Society, is publishing the second edition of The Constitutional Standards of the House of Lords Constitution Committee. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 140 constitutional standards, covering five areas: the rule of law, delegated powers, the separation of powers, individual rights and parliamentary procedure. The second edition extracts and codifies standards from all 168 reports of the House of Lords’ Constitution Committee published from its inception in 2001 to the end of the 2010-2015 Parliament.

When the first edition of the code was published in January 2014, I made the basic case for the use of a code of constitutional standards within Parliament. In this post, I focus on the role that a code of constitutional standards could play in the specific circumstances facing Parliament today: that of the first parliamentary session of a newly elected government intent on making major constitutional changes. In particular, I will examine the introduction of English votes for English laws (EVEL) as an example of constitutional change, and explore how the use of this code in both Houses of Parliament and in government could enhance the scrutiny of those proposed changes to parliamentary procedure.

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A Code of Constitutional Standards

The Constitution Unit of University College London is today publishing a report which sets out a code of constitutional standards based on the reports of the House of Lords Select Committee on the Constitution. Since 2001 the Committee has made many recommendations in its reports, and the goal of this report was to codify these recommendations in order to make the Committee’s analysis of the constitution more accessible. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 126 constitutional standards, each of which is relevant to the legislative process, and each of which has been extracted from the 149 reports of the Constitution Committee that were reviewed. The standards are organised into five sections: the rule of law; delegated powers, delegated legislation and Henry VIII clauses; the separation of powers; individual rights; and parliamentary procedure.

The Constitution Committee’s formal terms of reference were set by the House of Lords Liaison Committee when it was established in 2001 and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’. The Constitution Committee decided against drawing up a formalised code of constitutional norms in their first report to inform their bill scrutiny, instead the Committee adopted a pragmatic approach. The Committee identifies the norms that are relevant to each particular bill or inquiry in question. This flexible approach has a number of advantages, but one disadvantage is that the Committee’s conception of the normative foundations of the constitution is not easily accessible.

The first aim of the code in this report is to make the normative foundations of the Committee’s work more accessible. As part of their work, the Committee has made choices about what the constitution means in the context of the legislative process. It is these choices that the code seeks to highlight. It is important to note that the Committee advanced many of the cited standards in relation to particular bills, and did not put them forward as generalised standards. There is little doubt that if the Committee were to advance its own code of constitutional standards, it would look different to the code within this report. Nevertheless, the code does represent an accurate summary of the constitutional norms that the Committee has sought to uphold in its work since it was established in 2001.

In terms of the content of the code, it is noteworthy that many of the standards appear to be derived from the principles that underpin the parliamentary process. For example, standards that seek to regulate the use of fast-track legislation are not just general principles of good governance, nor are they are based on a particular constitutional principle, but rather they are derived from the normative foundations of the parliamentary process itself. Such standards serve to protect the integrity of the parliamentary process. This focus on parliamentary norms demonstrates the value of giving a parliamentary committee the task of assessing the constitutional implications of government bills. It has enabled the Committee to articulate the normative implications of the principles that form the foundations of the parliamentary process.

The second aim of the code is to provide a resource for those involved in the legislative process. It is widely recognised that one of the disadvantages of the United Kingdom’s uncodified constitution is that it is not easily accessible, and within Parliament the task of pointing out the constitutional implications of bills often falls to constitutional experts, particularly in the Lords, and the relevant committees. If the norms of the constitution were more readily accessible, it would be reasonable to expect more parliamentarians to engage with them during the legislative process. By publishing this code, it is hoped that parliamentarians, and others involved in the law-making process will make use of the standards within it during their scrutiny. The code might also be used by the Constitution Committee to develop its own code of legislative or constitutional standards.

The third aim is to contribute to the debate on the value of legislative standards within the legislative process in Westminster. In an earlier blog post, I put forward a critique of the code of legislative standards developed by the House of Commons Select Committee on Political and Constitutional Reform in their report titled ‘Ensuring standards in the quality of legislation’. In that post, I argued that although their code would represent a significant step forward, I thought it did not go far enough. Since that post, the Government has issued its response to the PCRC’s report. The Government could not be clearer – it does not think that a code of legislative standards is a good idea (paras 12-15). It suggests that the Cabinet Guide to Making Legislation is all that is needed for parliamentarians to judge the standard of the Government’s approach. Further, the Government argued that the PCRC’s code would risk encouraging a ‘box-ticking mentality’, and they point out that the code does not provide the ‘degree of objectivity it envisages.’ The latter point is surprising because the PCRC’s code makes every effort to be as ‘neutral’ as possible.

The Government appears to have misinterpreted the rationale for a code of soft law standards. The idea is to stimulate parliamentary debate on aspects of bills to which the standards relate, rather than to introduce an objective box-ticking exercise. The presence of parliamentary sovereignty and the absence of a codified constitution are sometimes taken to mean that Government and Parliament legislate into a normative vacuum. That somehow parliamentary sovereignty means that the government does not have to justify why a bill seeks to depart from the existing norms of the constitution. That idea, as Murray Hunt has recently argued in Parliament and the Law, is antithetical to any meaningful idea of constitutionalism. A code of constitutional standards is designed to challenge the myth of the normative vacuum and to raise the standard of justification within the legislative process, but without legally limiting Parliament’s legislative capacity. In this sense a code of soft law standards does not represent a threat to the political nature of the legislative process, as the code would always the subject of debate, and could be changed by purely political means. Soft law constitutional standards developed within Parliament might even find support from political constitutionalists, because they serve to enhance the quality of parliamentary debate by focusing the minds of parliamentarians on the value of the political process and the norms that form its basic architecture. Even if the standards are prescriptive, this does not mean that they cannot be departed from. The value of a code of soft law standards does not depend on them being complied with all of the time, instead it depends on then being used as the basis for debate and justification within the legislative process.

There seems to be little to lose and everything to gain from making more use of soft law codes of standards in Westminster. As this code demonstrates, committees within Parliament are already articulating the normative standards that are vital to the integrity of the parliamentary process. The challenge is to maximise the benefits of this work by making those standards as accessible and as influential as possible. It is hoped that this code makes a small contribution to this aim.