A good deal of the legal and constitutional interest generated by Brexit has so far, perhaps unsurprisingly, focussed upon the very beginning of the withdrawal process. Initially, all eyes were on the courts, with the Supreme Court holding in R (Miller) v Secretary of State for the European Union  UKSC 5 that the Article 50 mechanism can be activated only with Parliament’s legislative blessing. As a result of that landmark judgment, attention has now switched to Parliament, through which the European Union (Notification of Withdrawal) Bill is presently passing.
The questions that have so far commanded so much attention — concerning, initially, where constitutional authority lies in respect of this matter, and, now, on what terms the Government should be invested with such authority by Parliament — are fundamental. But they are also only the tip, legally and constitutionally speaking, of the Brexit iceberg. It is with (some of) the remainder of that iceberg that the House of Lords Constitution Committee’s report on The ‘Great Repeal Bill’ and Delegated Powers, published today, is concerned. In this post, we draw attention to three key aspects of the report, concerning how constitutional concerns might or should shape the scope of the legal powers conferred by the ‘Great Repeal Bill’; how such concerns ought to be reflected in the scrutiny processes to which the use of such powers will be subject; and the implications that the ‘Great Repeal Bill’ is likely to have in respect of the UK’s territorial constitution.
It is worth noting at the outset that neither the Bill itself (which is to be formally announced in the next Queen’s Speech) nor the White Paper that will prefigure it have so far been published. But, as the Committee notes, the possibility arises that the Bill may ‘enabl[e] the Government effectively to re-write the law across whole swathes of the statute book’. Against that background, the Committee has chosen to publish a report at what it acknowledges is a ‘preliminary stage’ so as to set the relevant issues ‘in their wider constitutional context’.
The legal scope of delegated powers under the ‘Great Repeal Bill’
The ‘Great Repeal Bill’ — so called by the Prime Minister when she first announced it in her Conservative Party conference speech in October 2016 — will repeal the European Communities Act 1972 (‘ECA’), which is the primary vehicle through which EU law is given effect in the UK. However, the Bill will preserve a great deal of the EU law that presently has force in the UK — by converting directly effective EU law into UK law, and by preserving secondary legislation enacted under the ECA. Thus, as the Committee observes: ‘Its working title notwithstanding, the “Great Repeal Bill” may not in fact repeal much EU law.’ On the face of it, the likely policy of the Bill seems intelligible and straightforward enough: a ‘snapshot’ of EU law will, it seems, be taken at one minute to midnight on the eve of Brexit Day, thereby facilitating a subsequent leisurely process entailing the amendment, reform or repeal of the EU law domesticated by the Bill. However, as the Committee shows in its report, the issues to which the ‘Great Repeal Bill’ is likely to give rise are actually anything but straightforward.
The Committee notes that, viewed from the vantage point of domestic law, the Brexit process will likely consist of three principal stages. (1) It will be necessary to determine which elements of EU law should remain operative in the UK post-Brexit and which should be jettisoned, given that some aspects of EU law will become irrelevant once the UK leaves. (2) In respect of EU law that is preserved, it will be necessary to amend some parts of it prior to Brexit, such that on Brexit Day the newly domesticated body of EU law makes sense in a post-Brexit UK. For instance, functions assigned to EU agencies will need to be reassigned to domestic bodies. (3) Following Brexit, the domesticated body of EU law will need to be maintained — it will, for instance, be necessary to amend it in the light of evolving circumstances and, in due course, will no doubt be subject to more substantial reform.
It is highly likely that each of these stages will involve the exercise by the Government of delegated powers granted by the ‘Great Repeal Bill’. However, it is central to the Committee’s thinking that the ‘Great Repeal Bill’ must not serve as a Trojan horse for the expansion of executive power beyond that which is required by the exigencies of Brexit. To that end, it advocates that the powers conferred by the Bill should be the subject of an overarching restriction, making them exercisable only insofar as is ‘necessary to adapt the body of EU law to fit the UK’s domestic legal framework’ and ‘to implement the result of the UK’s negotiations with the EU’. Thus limited, the powers would be exercisable both in order to prepare for Brexit Day and in order, post-Brexit, to maintain the body of EU law that will by then have been domesticated through the original use of the powers.
However, the Committee argues that as far as any further use of the powers is concerned, a distinction must be drawn between ‘technical amendments’ (involving the maintenance and updating of the body of domesticated EU law) and ‘larger amendments involving policy choices’ (i.e. wider ranging reform). While the Committee acknowledges that it will be appropriate to effect the more minor amendments using delegated powers, it concludes that more substantial amendments should be made ‘only via primary legislation’. It argues that if this distinction is not drawn, ‘the risk arises of certain areas of law — simply as a result of the happenstance that they began life as directly effective EU law — being permanently vulnerable to being reshaped through the use of delegated powers’.
The Committee also canvasses the possibility of using sunset clauses so as to mitigate the relevant constitutional risks. For instance, it notes that it will be necessary, over time, to ‘re-enact much of the body of EU law, with an appropriate division between primary and secondary legislation’. In order to incentivise this process, a sunset clause in the ‘Great Repeal Bill’ might ‘repeal domesticated EU law after a set period of time, necessitating that it be re-enacted as UK legislation rather than being incorporated in UK law by operation of the “Great Repeal Bill”’. This, notes the Committee, would ensure that ‘the whole body of EU law would be properly debated and enacted by the UK Parliament’.
Scrutinising delegated powers contained in the Great Repeal Bill
The sheer volume of delegated legislation that will inevitably flow from the ‘Great Repeal Bill’ raises the question of parliamentary scrutiny. A House of Commons Library briefing paper assesses that there are at present nearly 20,000 EU legislative acts in force of which around 5,000 are EU regulations that are directly applicable in all EU Member States. This does not take account of the number of UK statutory instruments through which so much EU law has been transposed.
From the perspective of effective oversight there are two different matters of constitutional concern that arise from using delegated powers in such an extensive way to reform this massive body of domesticated EU law. The first flows from the Committee’s distinction between technical amendments and substantive policy choices. While the form in which most EU law has been transposed is itself, per the ECA, secondary legislation, its substance is often highly significant. Had such policy changes been developed domestically, our typical constitutional practice would have been to use primary legislation for their passage. Therefore, although it may appear that the ‘Great Repeal Bill’ is simply creating delegated powers in order to revise existing delegated legislation, the Committee asserts that Parliament must look beyond the form of this law to its substance.
A second matter is structural limitations in the current model of scrutiny of delegated legislation. Parliament tends not to debate draft secondary legislation, it cannot be amended, and by convention it is not voted down by the House of Lords except in very exceptional circumstances. The Report therefore focuses upon this gap between the real significance of the Great Repeal Bill’s delegated powers on the one hand, and the danger that these will not be properly scrutinised or controlled on the other. The Committee welcomes moves within the Commons to address this deficit, including an inquiry announced by the House of Commons Procedure Committee on delegated powers in the ‘Great Repeal Bill’.
Given the general absence of plenary parliamentary debate on delegated powers, the Committee took evidence from a range of witnesses on ideas for improving existing mechanisms for scrutiny. Building upon the technical/substantive distinction, the Committee avers that Parliament should identify for more detailed scrutiny those statutory instruments that involve matters of significant policy interest or principle and should develop mechanisms to ensure meaningful scrutiny for these measures.
To that end, the Committee proposes that the ‘Great Repeal Bill’ contain a ‘statement’ provision analogous to section 19 of the Human Rights Act 1998. Under this proposal, the Minister would be required to sign a declaration in the Explanatory Memorandum to each statutory instrument amending the body of EU law stating
whether the instrument does no more than necessary to ensure that the relevant aspect of EU law will operate sensibly in the UK following the UK’s exit from the EU, or that it does no more than necessary to implement the outcome of negotiations with the EU.
The Committee argues that a statutory instrument which amends EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure, although it does not at this stage prescribe exactly what that should be. It also suggests that a new parliamentary joint committee might be established to decide the appropriate level of scrutiny for each statutory instrument laid under the ‘Great Repeal Bill’.
This proposal also catches the concern about the unamendable nature of delegated legislation. The Committee is not calling for a general overhaul of this principle, but a mechanism of strengthened scrutiny should provide the opportunity for a statutory instrument to be revised in the light of parliamentary debate.
Other related recommendations are that committees tasked with scrutinising secondary legislation laid under the ‘Great Repeal Bill’ should make effective use of external expertise and public consultation, and that they should be properly resourced. The Committee takes the view that preparations, including staff training, should begin soon to ensure the committees are fit for purpose when the powers in the ‘Great Repeal Bill’ take effect.
The ‘Great Repeal Bill’ and Devolved Powers
The Report also addresses the issue of devolution. This is a complex area. The UK’s exit from the EU will provide the devolved legislatures with the freedom to legislate in devolved areas that are currently circumscribed by EU law. Issues that arise are whether the Sewel convention will apply to the passage of the ‘Great Repeal Bill’ itself, and how the reform of domesticated EU law ought to be carried out: exclusively by UK ministers under the Great Repeal Bill, or also by the devolved administrations. The Committee sees the issue as essentially one of intergovernmental relations; the UK Government and devolved administrations will need to agree, before Brexit, how those new interfaces will be managed. The principal concern for the Committee is that ‘decisions on the repeal or adoption of domesticated EU law are taken in a way that has regard to the coherence of the Union.’
Ultimately, the Committee’s report is shaped by the need to fashion an appropriate response to circumstances that are highly unusual in both political and technical terms. As to the former, the scale of the legal preparations required in advance of Brexit, together with the constricted nature of the time period available, create a political imperative that makes inevitable what the Committee calls a ‘massive transfer of legislative competence’ from Parliament to Government. Meanwhile, in technical terms, the legal arrangements that will flow from Brexit will be highly unusual, not least because it will result in the importation of a large body of law that will need, at least on a transitional basis, to be rendered malleable through the use of delegated powers. In these circumstances, as the Committee notes, ‘constitutional concerns of a fundamental nature’ arise. The challenge lies in designing a legal architecture and an accompanying set of institutional arrangements that acknowledge the practical need to accomplish a great deal in a limited time, while also recognising that ‘the exceptional circumstances constituted by Brexit’ are not ‘a sufficient answer to legitimate concerns relating to the proper balance of constitutional authority as between Parliament and the Government’.
Brexit is transforming the United Kingdom’s relationship with the European Union. Parliament must seek to ensure that it does not also bring about a dramatic rebalancing of law-making power in favour the executive, the marginalisation of legislative scrutiny and a potentially dangerous unsettling of the territorial constitution.