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

Devolution and the repatriation of competences: the House of Lords Constitution Committee reports on the EU Withdrawal Bill

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The Constitution Committee of the House of Lords today published its report on the European Union (Withdrawal) Bill, which is set to have its second reading in the upper house this week. In this post, Stephen Tierney discusses the report’s findings on the devolution issues raised by the Bill and examines the suggestions for solving some of the problems posed by the legislation as currently drafted.

The House of Lords Constitution Committee has today published a comprehensive and critical report on the European Union (Withdrawal) Bill (‘the Bill’). The Bill’s second reading will begin in the Lords this week, with the government committed to bringing forward amendments to the Bill’s provisions regarding the devolved territories (in particular, the controversial clause 11), but as yet these have not been tabled.

Largely because of the government’s undertakings to change the Bill, and the fact that it trusts proposed amendments will emerge from negotiations between the UK government and devolved administrations, the Committee refrains from making its own detailed recommendations in relation to clauses 10 and 11. The Committee’s overall position is that: ‘the devolution settlements must not be undermined. We welcome the discussions that are currently taking place between the UK government and the devolved administrations to seek consensus on the approach of the Bill to meeting the challenges posed by Brexit.’ Nonetheless, the Committee is also clear that clause 11 as it stands is problematic and that amendments to the provision are ‘imperative’.

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What might parliament do with the Article 50 bill?

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On 24 January the Supreme Court ruled that the government requires parliament’s consent to trigger Article 50 of the EU Treaty and hence begin formally negotiating Brexit. This requires a bill, and the government responded with the European Union (Notification of Withdrawal) Bill – on which debates in the Commons begin today. Meg Russell asks how parliament could respond to the bill – both procedurally, and in terms of the political dilemmas facing members.

In the form it was introduced, the European Union (Notification of Withdrawal) Bill is a very short and simple measure. With just two clauses, it authorises the government to ‘notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’, stating that this is notwithstanding the 1972 European Communities Act or any other existing statute. Yet its simplicity clearly belies its importance; the decision to trigger Article 50, following the Leave vote in last June’s referendum, has potentially huge ramifications for both the UK’s politics and its economic future. It is well-known that a majority of MPs, and probably an even higher proportion of peers, supported Remain in the referendum. The government’s original starting point was that parliamentary approval of this kind was neither desirable nor necessary. Now that the bill has been published, its passage could present significant political challenges, for government and parliamentarians alike.

This post focuses primarily on the procedural aspects. What are the stages through which the bill will have to pass, and where do the potential obstacles lie? The post focuses in particular on the immediate Commons stages. Having indicated the key steps, it moves on to discuss MPs’ representational dilemmas, and how these could play out. Finally, it provides some brief reflections on the bill’s likely reception in the Lords.

The timetable for the bill in the Commons was set out by David Lidington, Leader of the House of Commons, on Thursday 26 January. Its second reading stage is due to take place on Tuesday and Wednesday this week, with debate today able to last up to midnight. It is then proposed to spend three days in committee, on the floor of the House of Commons, next week, after which it will quickly receive a third reading and (if approved) pass to the House of Lords.

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