Few pieces of legislation have been as keenly awaited in the recent past as the “Great Repeal Bill” — or, as it is now more soberly known, the European Union (Withdrawal) Bill. A great deal will be written and said about the Bill as it progresses through Parliament. The modest aims of this post are to draw attention to (what seem to me to be) the key elements of the Bill, and to note some of the difficult questions — and likely political and constitutional controversies — to which it will give rise. These are early days. What follows does not seek to be comprehensive. And the views I express are preliminary; I am likely to return to a number of the issues set out below in separate posts over the coming weeks.
Overview of the Bill
The central provisions of the Bill are respectively concerned with:
- the repeal of the European Communities Act 1972 (clause 1);
- the retention of EU law following the UK’s exit from the EU (clauses 2–4);
- the modification of that retained EU law (clause 7).
Repeal of the ECA
Clause 1 provides that the ECA “is repealed on exit day”. It might be thought that this means that the ECA will necessarily cease to have effect on the day that the UK leaves the EU — which, by operation of Article 50 of the Treaty on European Union, will be 29 March 2019 (absent agreement otherwise). In fact, however, it is for Ministers to determine when “exit day” is (clause 14(1)). This is no doubt sensible. Among other things, it means that the domestic legal switch can be flicked — with the consequences discussed below — at the appropriate time, and that any alteration to the anticipated schedule can readily be accommodated.
Clause 1 does raise a deeper issue, which is whether the ECA can actually have any effect once the UK leaves the EU, given that at that point there would be no relevant Treaties obligations upon which the Act’s principal provisions could bite. If, as I think is arguable, the ECA is rendered in effect a dead letter by withdrawal, then its repeal is not strictly necessary. But it is of course entirely unsurprising that clause 1 exists in the form that it does. If nothing else, it is a necessary piece of political theatre.
Retention of EU law
Once exit day arrives, the provisions of the Bill concerning the retention of EU law kick in. Their effect is to take a snapshot of EU and EU-related law as it exists immediately before exit day, turning it into a body of domestic law to be known as “retained EU law” (clause 6(7)). Retained EU law will comprise three principal categories.
Clause 2 preserves “EU-derived domestic legislation”, such as secondary legislation enacted under section 2(2) of the ECA for the purpose of implementing EU directives. Of course, such secondary legislation is already domestic legislation; but clause 2 ensures that it remains in force notwithstanding the repeal of the ECA, which, until exit day, serves as its legal basis.
Clause 3 converts “direct EU legislation” into domestic law: that is, EU law, such as EU regulations and decisions, that have direct effect in the UK so long as it remains a Member State. Once the UK ceases to be a Member State, such EU legislation will become part of domestic law by operation of clause 3.
Clause 4 addresses elements of EU law that currently have effect in the UK thanks to section 2(1) of the ECA but which are not covered by clause 3. This extends to rights arising under directly effective provisions of the EU Treaties — including, as the Explanatory Notes to the Bill make clear, the key provisions of the Treaty on the Functioning of the EU that provide for the “four freedoms”. However, the likely effect of retaining such matters is far from clear. In particular, it is hard to see how retained Treaty rights would have any substantive legal bite in the absence of the reciprocity that membership of the EU entails. It is, for instance, one thing to say that clause 4 causes free movement rights to be retained; but if the UK is no longer a member of the EU, then the “rights” UK citizens have by virtue of clause 4 will be meaningless, because other EU States will have no legal obligation to acknowledge, far less act upon, such “rights”.
Status of retained EU law
Clause 5 addresses the status of retained EU law:
- Clause 5(1) provides that the EU supremacy principle does not apply to any enactment or rule made or passed on or after exit day.
- But clause 5(2) provides that the EU supremacy principle does apply when questions arise post-exit about the interpretation, disapplication or quashing of pre-exit enactments and rules.
- Clause 5(3) goes onto say that the arrangement set out in clause 5(2) applies even if a relevant pre-exit enactment or rule is amended post-exit, provided that “the application of the principle is consistent with the intention of the modification”.
The effect of these provisions is that retained EU law (including, generally, retained EU law that is modified post-exit) will benefit from the EU supremacy principle vis-à-vis pre-exit but not post-exit domestic legislation. Thus, if questions arise about the relative priority of pre-exit domestic legislation and retained EU law, retained EU law will prevail. It will therefore, for instance, be possible for a court to disapply pre-exit Acts of Parliament if they conflict with retained EU law. But when questions arise about the relative priority of post-exit domestic legislation and retained EU law, the EU supremacy principle will be disregarded, meaning, for instance, that post-exit Acts of Parliament will be capable of taking priority over retained EU law.
EU Charter and general principles of EU law
Clause 5(4) provides that the EU Charter of Fundamental Rights is not part of domestic law on or after exit day. However, according to clause 5(5), fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation in domestic law of the Charter itself and can therefore form part of domestic law. But this caveat, it turns out, is of limited utility, thanks to schedule 1, paragraph 3. It provides that no right of action can arise in domestic law post-exit on the basis of a failure to comply with general principles of EU law, and that (among other things) legislative and administrative action cannot be quashed post-exit on the ground of incompatibility with EU general principles. Such general principles can, however, be drawn upon by domestic courts when determining post-exit questions about (for instance) the meaning of retained EU law.
The failure of the Bill to retain the Charter in domestic law has already drawn a good deal of criticism from politicians. One response that has been made to that criticism is that not retaining the Charter merely reflects the fact that the UK had an “opt-out” from the Charter, and so was not bound by it anyway. That, however, is simply wrong. The UK’s so-called opt-out was not in fact an opt-out at all, as was made abundantly clear in the NS case. At the same time, however, retaining the Charter would be far from straightforward. For one thing, it presently operates only in areas to which EU law applies — a restriction that would make no sense post-withdrawal. Yet if the Charter were to be given global effect within the domestic legal system, that would create significant complications — not least its relationship with the Human Rights Act 1998.
Case law of the Court of Justice
Clause 6 deals with the jurisprudence of the Court of Justice. The basic principles here are that post-exit CJEU case law is not binding on UK courts (albeit that can choose to consider it), while, in general, UK courts must decide relevant cases in accordance with pre-exit CJEU jurisprudence. There are, however, certain exceptions; in particular, the Supreme Court can depart from pre-exit CJEU jurisprudence, but only if doing so is warranted when applying the same test it applies when deciding whether to depart from its own case law.
Modifying retained EU law
Clauses 2–4 will capture most of the EU law that exists immediately before exit. But clause 7 and schedule 7 recognise that a good deal of retained EU law will either be entirely inappropriate following exit or will be appropriate only if modified (because, for instance, it presupposes things that no longer apply following withdrawal). To that end, clause 7 confers extraordinary powers on Ministers of the Crown to amend, repeal or replace retained EU law by making administrative regulations. Corresponding powers are conferred on devolved institutions by clause 10 and schedule 2. The powers are subject to a sunset clause, meaning that they cease to be exercisable two years after exit day (clause 7(7)). Schedule 7 sets out the forms of control that Parliament can exercise when the clause 7 powers are used.
Other delegated powers
The Bill confers other delegated powers, also in broad terms. For instance, clause 8 authorises Ministers to make regulations to prevent or remedy breaches of the UK’s international obligations that would otherwise arise from its exit from the EU, while clause 9 provides powers for the purpose of implementing the UK’s withdrawal agreement (should such an agreement be made). The powers granted by clause 8 expire two years after exit day (clause 8(4)). The powers granted by clause 9 expire on exit day (clause 9(4)). Also noteworthy is the power conferred by clause 17(1) which allows Ministers by regulations to make such provision as is “considered appropriate in consequence of this Act”.
Devolution
At present, EU law limits the powers of devolved institutions. The default position upon withdrawal would be that those limits would fall away. As a result, devolved institutions would acquire the power to do things that fall within devolved fields but that previously could not be done because they would have fallen foul of the EU law-related restriction on devolved competence. However, this accrual of devolved authority upon withdrawal will not in fact occur, thanks to clause 11. It amends the devolution legislation, so that the modification of retained EU law will fall outside devolved competence. However, it will be possible, by Order in Council, to specify that the prohibition upon modifying retained EU law does not apply in relation to certain matters. The UK Government’s intention, according to the Explanatory Notes to the Bill, is that it will work with the devolved administrations to identify areas of retained EU law where no pan-UK approach is deemed necessary; those areas will then be released to the devolved bodies by the making of Orders in Council.
Commentary
The EU (Withdrawal) Bill is technical, dense and complex. What follows are no more than preliminary thoughts about what seem to me to be some (and only some) of the most sensitive and interesting constitutional issues that the Bill is likely to raise.
Delegated powers: Henry VIII
The powers conferred on Ministers by the Bill are extraordinarily substantial. That follows for two interlocking reasons. The first is that they constitute Henry VIII powers of the most ample type. As clause 7(4) puts it, the power granted by clause 7(1) can be used to enact regulations that make “any provision that could be made by an Act of Parliament”. Clauses 8(2) and 9(2) make equivalent provision in respect of the powers conferred by clauses 8(1) and 9(1). On the face of it, this implies a plenary legislative power — a power to legislate for any purpose. However, clauses 7(4), 8(2) and 9(2) cannot properly be read that broadly, for the powers granted by clauses 7(1), 8(1) and 9(1) are in the first place granted only for certain purposes and are subject to certain restrictions. The point about clauses 7(4), 8(2) and 9(2), therefore, is that they do not relate to the scope of the powers; rather, they relate to their constitutional potency. And they are certainly potent: if it is possible for regulations made under clauses 7(1), 8(1) and 9(1) to do anything that could be done by Act of Parliament, then that must extend to amending or repealing any kind of law, including provisions in other Acts of Parliament.
Delegated powers: Scope
The second point concerning delegated powers is that their constitutional potency is matched by their extraordinary scope. That scope is not infinite: there are restrictions concerning such matters as imposing taxes, creating more-serious criminal offences, amending the Human Rights Act 1998, and making provision that is itself retrospective in effect. Nevertheless, what can be done using these powers is very broad indeed — a point that applies with particular force to clause 7(1).
It allows Ministers to make such regulations as they consider appropriate for the purpose of preventing, remedying or mitigating “any failure of retained EU law to operate effectively” or “any other deficiency in retained EU law” arising from exit. What is meant by a failure to “operate effectively” is left entirely open; meanwhile, clause 7(2) gives merely non-exhaustive (and wide ranging) examples of things that can be considered “deficiencies”.
It is, for instance, clear from the Bill that the clause 7(1) power can be used not only to transfer EU regulatory functions to existing UK institutions, but to create new public authorities in the UK (schedule 7, paragraph 1(2)(a)). It is also noteworthy that the Bill explicitly confirms that the clause 7(1) power can be used to create powers to legislate (schedule 7, paragraph 1(2)(f)). And since the clause 7(1) power can be used to do anything that could be done by Act of Parliament, that means that it can be used to create Henry VIII powers. Thus the prospect arises of Ministers using a Henry VIII power to confer further Henry VIII powers upon themselves or others — a form of delegated legislation on stilts.
Delegated powers: Judicial review
A question inevitably arises about how courts are likely to respond to challenges to things done under these powers. The language is so broad that successful challenges may appear to be a very distant prospect. However, the Supreme Court’s recent decision in R (Public Law Project) v Lord Chancellor [2016] UKSC 39 suggests that we cannot assume that extremely broadly framed powers will be taken by the courts to be as wide as their language suggests. Lord Neuberger, delivering the sole judgment, noted what he considered to be the tension between Henry VIII powers and parliamentary sovereignty:
When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.
He then went on to quote (with approval) the following passage from Craies on Legislation:
[A]s with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.
The application of these principles to clause 7(1) is likely to make for some interesting litigation.
Delegated powers: Uncertainty
Two further, related points are worth noting in relation to the key clause 7(1) power. First, it can only be used to deal with failures of retained EU law to operate effectively and with other deficiencies in retained EU law to the extent that those problems arise from the withdrawal of the UK from the EU. However, this raises an obviously difficulty. The extent to which withdrawal will cause problems of the types referred to in clause 7(1) will not be apparent until it is known whether the UK is going to leave simply by dint of the Treaties ceasing to apply, or whether it is going to leave on agreed terms. This means that it will be very difficult to assess whether proposed uses of the clause 7(1) power are appropriate until it is known on what, if any, agreed terms the UK is to withdraw.
That leads to a second point, concerning when these powers will actually be used. According to clause 19(1)(a), clause 7(1) enters into force immediately upon enactment. The intention, presumably, is that regulations under clause 7(1) will begin to made soon after enactment, so that as much time as possible can be devoted to performing the necessary legislative surgery upon the body of retained EU law that will kick in on exit day. But this raises some real difficulties. For instance, amendments to EU law made by clause 7(1) regulations some time in advance of exit might themselves be rendered problematic or nonsensical if the relevant EU law is itself amended or rescinded at an EU level prior to the UK’s withdrawal. More than that, the powers conferred by clause 7(1) only permit the performance of surgery upon retained EU law, a body of law that only crystallises at one minute to midnight on the eve of exit day. Exercising clause 7(1) powers in advance of exit day cannot therefore serve to capture of freeze the relevant EU provision in advance of exit.
A further problem, touched upon in the previous paragraph, is that amendments that seem as though they will be needed (say) a year out from exit day might be rendered inappropriate once the terms of any withdrawal deal crystallise. This raises the risk of either having to put multiple versions of clause 7(1) regulations through Parliament, or putting many such regulations to Parliament at the eleventh hour — thereby ensuring their appropriateness to the by-then-known circumstances of withdrawal, but compounding the problems around scrutiny (to which I now turn).
Parliamentary control: General
It was always inevitable that wide ministerial powers would have to be conferred by the Bill. And for all that this might be considered an affront to constitutional principle, little is to be gained by making that observation given the hard legislative realities that must be faced between now and exit day. The key constitutional issue in this regard was therefore always going to concern the degree of oversight and control exercisable by Parliament over the exercise of these powers. In approaching these issues, it is important to remember how limited is the scrutiny normally received by delegated legislation in Parliament — and, in particular, in the House of Commons. Subject to very rare exceptions, statutory instruments cannot be amended, and must therefore simply be given the green light or not. It is sobering to recall that the last time the House of Commons rejected a statutory instrument was in 1979.
The scrutiny arrangements for use of delegated powers under the Withdrawal Bill are set out in schedule 7. Broadly speaking, it draws a distinction between two categories of regulations. By default, the negative procedure will apply, meaning that regulations take effect until one or other of the Houses of Parliament passes a resolution annulling them. Such annulment is extremely rare. But some regulations will be subject to the affirmative procedure, meaning that they only enter into force if positively approved by both Houses. This entails a greater degree of parliamentary oversight and control than the negative or annulment procedure. Channelling some regulations in the affirmative and some into the annulment procedure is clearly sensible. Trivial, purely technical amendments to retained EU law need not detain Parliament by being routed through the affirmative procedure; but more substantial matters clearly should attract more by way of scrutiny and control. So far so good. But there are two fundamental problems with the way in which the Bill approaches this matter.
Parliamentary control: Problems
The first problem is that the category of regulations that attract the affirmative procedure is very narrow. It extends only to regulations that establish new domestic public authorities, transfer EU functions to UK public authorities, impose certain fees, create or widen the scope of criminal offences, or create or amend legislative powers. The likelihood — indeed, the certainty — thus arises that regulations that entail the making of highly significant policy choices and that have potentially serious or far-reaching implications will be subject only to annulment by Parliament, thereby shielding them from effective scrutiny.
The second problem is a related one. Given the vast range of issues that regulations made under clause 7(1) will have to deal with, attempting to lay down in advance abstract criteria that set the appropriate scrutiny level was always doomed to failure. It is for that reason that the House of Lords Constitution Committee, in its preliminary report on the “Great Repeal Bill”, raised the possibility of a sifting or triage process in Parliament, whereby an initial judgement would be made by a joint committee of both Houses about the appropriate level of scrutiny for a given set of regulations. The triage process would then have directed the regulations into a scrutiny procedure that was proportionate to the regulations’ significance and policy implications. There is, however, no hint of such an approach in the Bill. Nor is there any facility for directing regulations into an enhanced process entailing scrutiny beyond that inherent in the standard affirmative model. Such enhanced processes exist under a number of other pieces of primary legislation, but the Government pleads that enhanced scrutiny would cause too many delays to the amendment of retained EU law. Parliament, when it begins to consider the Bill, will have to decide whether that argument is good enough.
The need for extraordinary delegated powers is obvious in current circumstances. But it is regrettable that the Bill signally fails to acknowledge that the conferral of such extraordinary powers — judged by metrics including their breadth, their constitutional potency, and the unprecedented volume of regulations they will generate within a highly constricted timeframe — calls for something other than a bog-standard model of scrutiny. It is to hoped that this is a point that will not be lost on parliamentarians when their scrutiny of the Bill commences.
Sunset clauses: General
The principal power conferred by clause 7(1) for the purpose of correcting “deficiencies” in and ensuring the “effective operation” of retained EU law expires two years after exit day. This is welcome. Indeed, there would be powerful constitutional objections to any other approach. This follows because of the highly unusual set of legal circumstances that the Bill will bequeath. In particular, it will produce a new body of law — retained EU law — that will be vulnerable to the performance of extensive legislative surgery by ministers using delegated powers. Critically, however, that new body of law will constitute an undifferentiated mass of measures ranging from those that are mundane and highly technical in nature (and hence the type of thing that would, if enacted domestically, most likely take the form of secondary legislation anyway) to those that deal with the sort of broad, policy-heavy matters that are normally the preserve of primary legislation that is vulnerable (if at all) to ministerial amendment only to a limited extent through the conferral of specific Henry VIII powers. The body of EU retained law, however, dissolves this distinction, existing as a single legal category the entirety of which is amenable to the extensive powers conferred by the Bill. In such circumstances, it is entirely appropriate that those powers should be time-limited in nature, such that subsequent legal surgery upon retained EU law will (absent the conferral of fresh delegated powers) need to be performed by primary legislation.
Sunset clauses: Circumvention?
There are, however, some caveats that must be entered, and that potentially undercut the efficacy of the sunset clauses as constitutional safeguards. The first relates to “exit day” which, as noted at the beginning of the post, is not fixed by the Bill but is to be designated by ministerial order. If exit day turns out not to be on 29 March 2019 but some time later than that, then that of course will extend the time period during which the delegated powers granted by the Bill can be exercised. This follows because the two-year clock in the sunset clauses begins to run only on exit day. If, for instance, exit day were designated as falling at the end of a potentially long transitional period, then the sunset clauses’ efficacy would look very different.
Could the sunset clauses be circumvented in some other way? Here, clause 17(1) is potentially significant. It provides that a Minister “may by regulations make such provision as the Minister considers appropriate in consequence of this Act”. The Government’s Delegated Powers Memorandum emphasises that this permits the making of regulations in consequence of the Bill, as distinct from regulations in consequence of withdrawal. However, that distinction is a fine one, and it is further eroded by related provisions in the Bill. Schedule 7, paragraph 13 says that any power granted by the Bill to make regulations “may be exercised so as to modify retained EU law”. And schedule 7, paragraph 14 provides that: “The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act.” Meanwhile, clause 17(2) and (3) confirm that the clause 17(1) power can be used (among other things) to make regulations modifying Acts of Parliament (except Acts enacted after the current parliamentary session). And schedule 7, paragraph 9 provides that clause 17(1) regulations are subject only to annulment.
Ultimately, it seems to me highly unlikely that a court would permit clause 17(1) to be used so as to wholly circumvent the sunset provision that constrains the clause 7(1) power. But questions will certainly arise about the extent to which clause 17(1) permits the ongoing modification of retained EU law once the two-year period for the exercise of clause 7(1) has expired.
Status of retained EU law: Parliamentary sovereignty
As noted above, clause 5 deals with the hierarchical legal status of retained EU law. Clause 5(1) says that: “The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.” Clause 5(2) goes on to explain that “the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day”.
This raises an interesting question relating to parliamentary sovereignty. Assume, for instance, that the EU (Withdrawal) Bill becomes an Act on 1 January 2018. Assume further that exit day is 29 March 2019. In the 15 months between enactment of the withdrawal legislation and exit, substantial quantities of other legislation will no doubt be passed by the UK Parliament (much of it relating to other aspects of withdrawal). The intended effect of clause 5(1) and (2) appears to be that retained EU law will take priority over Acts of Parliament enacted between January 2018 and the end of March 2019. This, in turn, suggests that the Bill is seeking to provide that the retained EU law to which it will give effect should prevail over subsequent Acts of Parliament. (“Subsequent” in the sense of being enacted after the Withdrawal Bill but prior to exit day.)
On the face of it, this is constitutionally impossible, the courts’ duty — under the doctrine of parliamentary sovereignty — being to give effect to the most recent expression of parliamentary intention in the event of an irreconcilable conflict between two Acts of Parliament. The language of clause 5(1) and (2) is, however, carefully chosen. By referring to “the principle of the supremacy of EU law”, the intention is presumably to leverage whatever process of constitutional alchemy resulted in the present state of affairs whereby EU law itself can prevail over Acts of Parliament, whenever they were enacted.
In fact, if (as I think it should be) the priority currently enjoyed by EU law is attributed to the ECA’s status as a constitutional statute, the position becomes more straightforward. The withdrawal legislation will surely also be considered a constitutional statute, meaning that it will assume priority over other (including future) legislation unless such legislation is explicitly incompatible with it. On this view, the priority rule contained in clause 5(1) and (2) will continue to apply even if legislation enacted after the Withdrawal Bill but before exit day is incompatible with the retained EU law to which the Bill gives effect (absent relevant express provision in the legislation passed after the Withdrawal Bill). This will follow because the priority rule in clause 5(1) and (2) will be impervious to implied repeal, such that it will operate in spite of any implied incompatibility between subsequent legislation and the retained EU law to which the Withdrawal Bill will give effect.
Status of retained EU law: Two further points
Further complexities in relation to the status of retained EU law arise. Two are particularly worth noting. First, an issue that is not (as far as I can see so far) addressed by the Bill is whether, for this purpose, all retained EU law is to be treated equally. At present, the EU supremacy principle means that directly effective EU law enjoys priority over Acts of Parliament, but the same is not true of secondary legislation enacted under the ECA for the purpose of giving domestic effect to non-directly effective EU law does not. The Bill does acknowledge a distinction for retention purposes between “direct EU legislation” and “EU-derived domestic legislation”, but it is unclear whether that distinction is intended to have any relevance to the application of the priority rules laid down in clause 5(1)–(3).
Second, the position of retained direct EU legislation is curious. On the one hand, it will benefit from the effect of clause 5(1)–(3), such that it enjoys qualified primacy post-exit, in that it will have priority over pre-exit domestic legislation. (This must be the case, the wrinkle in the previous paragraph notwithstanding: whatever uncertainty there might be about the reach of the priority rules laid down in clause 5(1)–(3), they must extend to retained direct EU legislation, given that, pre-Brexit, the supremacy principle attaches to relevant EU instruments.) On the other hand, however, it appears from schedule 8, paragraphs 3 and 5, that retained direct EU legislation is to be treated as secondary legislation for the purposes of amending powers. That is to say that those paragraphs direct that relevant delegated powers are to be read as extending to the modification of retained direct EU law. Thus, it appears that for amendment purposes, retained direct EU law is to be treated as secondary legislation (under schedule 8), but that for priority purposes it is to be treated as having priority over pre-exit domestic legislation pursuant to the EU supremacy principle. Thus it assumes an almost schizophrenic character, being a form of secondary legislation that has primacy over (pre-exit) primary legislation.
The territorial constitution and the Sewel convention
In its Explanatory Notes, the UK Government acknowledges that a number of provisions of the Bill will engage the Sewel Convention, thereby triggering a requirement for legislative consent motions (LCMs) on the part of the devolved legislatures. For instance, as noted above, clause 11 in effect freezes devolved competence on exit day by ensuring that the repatriation of powers from the EU does not result in any accrual of authority to the devolved legislatures, even in subject areas that are devolved. Repatriated powers will thus flow, at least in the first instance, back to London, not to Belfast, Cardiff or Edinburgh, meaning that it will be UK-level institutions that are capable of legislating on matters that fall within devolved subject areas but that were off-limits to devolved institutions thanks to their incapacity to breach EU law. The effect is to deprive the devolved institutions of powers that would have defaulted to them upon withdrawal, and to give those powers instead to UK-tier institutions.
Now, the Sewel Convention “normally” applies when the UK Parliament legislates so as (among other things) to change devolved competence. It might be argued that no change in devolved competence is entailed, because the EU law constraint is merely being swapped for the retained EU law constraint. But this argument cannot succeed — if nothing else because the two bodies of law will not be identical, such that the replacing of the former with the latter constraint will inevitably result in changes to the scope of devolved competence. It might, of course, be argued that these are not “normal” circumstances, but such an argument would be politically naïve in the extreme, and in any event the point now appears to have been conceded, at least by the UK Government. Having said in its Explanatory Notes that LCMs are required, it could hardly argue (if such LCMs were not forthcoming) that that did not matter because of the abnormal circumstances caveat. In this, as in so many other matters, the having of cake and the eating of cake are mutually incompatible. The battle lines, indeed, are already being drawn. In a joint statement, the First Minsters of Scotland and Wales have said that they consider the Bill, as presently drafted, to be “a naked power grab” and “an attack on the founding principles of devolution”.
The point remains that the Sewel Convention is precisely that — a convention. And the Miller judgment makes it perfectly clear that that remains so, notwithstanding the statutory references to it in the Scotland Act 2016 and now in the Wales Act 2017. Thus if LCMs are not forthcoming, then the UK Parliament would be legally free to press ahead with the enactment of the Withdrawal Bill in spite of devolved opposition. To say that that would be political folly would be a gross understatement. But the risks for the devolved nations are considerable as well, given than derailment of the Bill by the devolved nations might plunge the UK into utter chaos if it were to leave the EU without having the Withdrawal Bill in place. Leaving without a withdrawal agreement has so far been considered to be the hardest of “hard” Brexits; leaving without a withdrawal agreement and without a Withdrawal Bill would result in chaos on an almost unimaginable scale. Thus a high-stakes game of constitutional brinksmanship is likely in the offing, but it is ultimately in no-one’s interests for the Withdrawal Bill not to be enacted.
Final thought
The Conservative Party says that by introducing the Withdrawal Bill into Parliament, it is “giving Britain the certainty it needs as we leave the EU”. Hardly. The list of things that demonstrates the palpable — even existential — uncertainties involved in the UK’s proposed departure from the EU is an extraordinarily long one. And the Withdrawal Bill, far from resolving any uncertainties, merely serves to highlight and emphasise the vast scale of the uncertainty that lies ahead. The Explanatory Notes accompanying the Bill are replete with references to “correcting” EU law as it is converted into domestic law. But to suggest — as such language might be taken to imply — that the Withdrawal Bill facilitates some form of technocratic exercise involving the dotting of “i”s and the crossing of “t”s so as to ensure that the statute book is tidied up in time for exit day lacks any basis in reality. In truth, the Bill lays bare the vast expanse of the decisions that need to be taken — and the voluminous uncertainties that those making such decisions will have to confront — in extremely short order.
Leaving to one side any questions about the merits or otherwise of the decision to leave the EU, what needs to be done between now and exit day is nothing short of a herculean task. To that extent, something along the lines of the Withdrawal Bill is necessary, like it or not. But far from securing certainty, it is liable both to engender and place centre stage fundamental and multiple forms of uncertainty. The delegated powers granted by the Bill are as extraordinarily vague as they are broad; the arrangements for parliamentary oversight are, in my view, inadequate; the division of territorial competences has been drawn in a way that risks further destabilising the union between the four nations of the UK; and, at the most basic level of all, the target at which those wielding the powers granted by the Bill must aim is one that cannot yet be seen, given that we do not know whether there will be any withdrawal agreement or what any such agreement might say.
In political terms, the Withdrawal Bill is being presented as the epitome of the taking back of control and the restoration of “sovereignty” that has been so fetishized by some. But it actually demonstrates something very different. It serves as a stark reminder of the way in which the banal rhetoric that has characterised — and that continues to characterise — much of the political debate in this area is now beginning to meet brutal legal and constitutional reality. Some will doubtless find clause 1 of the Bill, with its references to “exit day” and the repeal of the European Communities Act, intoxicating. They should make the most of it. Because the rest of the Bill palpably demonstrates that those drunk on the notion of taking back control need to face up to the fact that they — indeed, we — are in for one hell of a hangover.
Public Law for Everyone 