Public Law Update #4: Brexit, the separation of powers and devolution

The third edition of Public Law was published by Oxford University Press in May 2017. This is the last in a series of posts by the authors, Mark Elliott and Robert Thomas, taking the 2017 election and Brexit as reference points and updating readers on recent developments in the field. These posts are based on updates first published by Oxford University Press in the book’s Online Resource Centre.

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Screen Shot 2017-07-20 at 16.58.20The UK constitution is famously ‘flexible’. A graphic illustration of that flexibility is supplied by the EU (Withdrawal) Bill 2017. Having converted the vast majority of EU law into domestic law, clause 7 of the Bill goes on to provide Ministers with extremely wide powers to address ‘deficiencies’ in ‘retained EU law’. No-one doubts that these powers are necessary. A great deal of ‘retained EU law’ will need to be adapted if it is operate sensibly post-Brexit. Sometimes the necessary adaptations will be technical (e.g. replacing the name of an EU body with the name of a UK body). But sometimes they will be much more radical. Indeed, the Bill acknowledges as much by explicitly contemplating that the powers given to Ministers can be used for such things as creating new UK regulatory and setting up new regulatory systems. In going this far, the Bill fails to respect the line between technical and policy matters which, according to the House of Lords Constitution Committee, ought to delimit ministerial powers under the Bill.

How, then, will this system of ‘correcting’ retained EU law work? The Bill states that if a Minister considers it appropriate to ‘prevent, remedy or mitigate’ any ‘failure of EU law to operate effectively’ or ‘any other deficiency’, she can made regulations under clause 7. Such regulations can be used to amend or repeal ‘retained EU law’ and to amend or repeal any other domestic legal provisions, up to and including Acts of Parliament. Indeed, clause 7(4) explicitly states that regulations made under clause 7 ‘may make any provision that could be made by an Act of Parliament’. The breadth of these powers is further underlined by the fact that ‘deficiency’ is not defined by the Bill, which instead only gives a non-exhaustive list of illustrative examples, and by the fact that the list of things, contained in clause 7(6), that cannot be done via clause 7 regulations is very short indeed. Another very wide power is given by clause 9, which allows Ministers to make any regulations they consider appropriate for the purpose of implementing a withdrawal agreement between the UK and the EU. Like regulations made under clause 7, regulations made under clause 9 ‘may make any provision that could be made by an Act of Parliament’. But clause 9 then goes even further, by providing that regulations made under it can even amend the Bill itself.

These provisions in the Bill are commonly known as ‘Henry VIII’ powers. These are statutory powers that give the Government the ability to make regulations – secondary legislation – in order to amend Acts of Parliament – primary legislation – but without receiving the full Parliamentary scrutiny that attaches to the making of primary legislation. Such powers are widely considered to be constitutionally dubious on the ground that they confer excessive power upon the government to make primary legislation without adequate Parliamentary scrutiny.

Separation of powers

Are the use of such powers in the EU (Withdrawal) Bill constitutionally acceptable? Or are they an affront to the constitutional principle of separation of powers? To address this question, we need to consider three matters which, individually or cumulatively, might assuage concerns that the Bill confers too much power upon the Government. These matters are: the availability of judicial review; oversight by Parliament; and the temporal limitation of the powers through ‘sunset clauses’. When we apply these considerations, how does the Bill fare?

First, there is judicial review. Nothing in the Bill prevents judicial review of regulations made under it. In principle, therefore, judicial review will be available as a means of challenging such regulations. However, judicial review only lies if the Minister exercising the regulation-making power has acted unlawfully — an assessment that must turn, at least in large part, upon the scope of the powers granted to the Minister. The broader the powers, the less likely it is, it might be thought, that the Minster will be found to have exceeded them. On this view, successful judicial review challenges to the powers given to Ministers by this Bill seem unlikely. However, courts do not interpret legislation in a constitutional vacuum. If important constitutional principles are in jeopardy, then the courts will generally seek to interpret the relevant piece of legislation in a way that accommodates and upholds such principles.

For instance, 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 (a concept which, in this context, relates closely to the separation of powers): ‘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) from Craies on Legislation, in which it is said that while ‘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’. There is, then, potential scope for judicial scrutiny of regulations made under the Bill.

Second, are the powers granted by the Bill made more constitutionally palatable by the arrangements that have been made for their oversight by Parliament? Most secondary legislation is made through the ‘annulment procedure’, whereby it takes effect unless Parliament objects. Such objections are extremely rare. A much smaller proportion is made under the ‘affirmative procedure’, whereby it takes effect only if Parliament positively agrees (which it usually does). The vast majority of regulations made under the Bill will be made under the annulment procedure; only if regulations deal with one of a very small number of specified matters must the affirmative procedure be used. In practice, therefore, regulations made under the Bill will receive very little — and usually no meaningful — parliamentary scrutiny. That point is compounded by the fact that, according to the Government’s own estimates, up to a thousand pieces of legislation will have to be made under these powers prior to exit, meaning that Parliament will simply not, in any event, have time to scrutinise this vast body of secondary legislation closely. Because of that, the House of Lords Constitution Committee called for a bespoke scrutiny regime involving a triage system, whereby more significant regulations could be diverted into a more searching scrutiny process. But the Bill makes no concessions to that view.

Third, the very wide powers granted by the Bill are, on the face of it, at least temporally limited by ‘sunset clauses’. For instance, the ‘correction’ powers granted by clause 7 cannot be used ‘after the end of the period of two years beginning with exit day’. Meanwhile, the clause 9 powers to implement any withdrawal agreement cannot be used ‘after exit day’. However, all is not as it might seem. For one thing, clause 9 can, as mentioned above, be used to amend the Bill, thus raising at least the possibility that it might be used to repeal or amend the sunset clauses. For another thing, ‘exit day’ is undefined by the Bill. Instead, it is for Ministers to define ‘exit day’, and the Bill even allows them to define it so as to mean different things for different purposes. The prospect thus arises of the sunset clauses being circumvented.

The extraordinary powers contained in the Bill have already attracted considerable comment and criticism on the ground that they represent a ‘power grab’ by the executive from the legislature. It is quite possible that these parts of the Bill will be amended as it progresses through Parliament. The Government, however, will likely be keen to retain maximum flexibility, bearing in mind that the Bill is being enacted long before anyone has any clear idea of what Brexit will actually look like. In those circumstances, it is obviously attractive for the Government to have wide and flexible powers. But it will be for Parliament to decide to what extent such powers should be conferred, and what sort of balance should be struck between, on the one hand, constitutional principle and, on the other hand, the practical need to undertake an unprecedented legislative workload against a very tight deadline.

The ‘Repeal Bill’ and devolution

The referendum on the UK’s membership of the EU highlighted the fragility of the UK’s territorial constitution. People in different parts of the UK voted in notably different ways. In particular, there was a clear and substantial majority for ‘Remain’ in Scotland, while England delivered the biggest vote (not only in numerical but also proportional) terms for ‘Leave’. That the peoples of the UK’s constituent nations want different things in this regard is, then, plain. Prior to the political earthquake unleashed by the decision to hold a snap general election in 2017, the possibility of a second referendum on Scottish independence was climbing up the political agenda, the argument being that the pro-UK vote in the first independence referendum was founded upon the UK remaining part of the EU. According to that line of thinking, the outcome of the EU referendum changed everything as far as Scotland’s constitutional position was concerned. A second Scottish independence referendum is no longer in immediate prospect, albeit that one may well take place once the terms of Brexit are clear. But that does not mean that the UK’s territorial constitution is anything other than closely implicated by the Brexit process. In particular, two issues have arisen as a result of the EU (Withdrawal) Bill, which respectively concern the legal and political spheres.

As to the legal issue, the Bill, if enacted as it is currently drafted, will amend the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006. At present, those statutes provide that devolved competence — that is, the legal powers of the devolved institutions — is limited by, among other things, ‘EU law’. The Bill will remove ‘EU law’ as a restriction on devolved competence, replacing it with a new restraint: ‘retained EU law’. This may seem like nothing more than a matter of tidying up the statute book. However, that is not the case. For one thing, ‘retained EU law’ and ‘EU law’ are not one and the same, not least because the former will be amended, in some instances heavily, so as to take account of post-Brexit realities. The Bill thus changes the scope of devolved competence — a matter that is important, as we explain below, on the political level.

For another thing, by making ‘retained EU law’ a limit on devolved competence, the Bill has the effect of confounding some devolved politicians’ expectations of what would happen when the UK leaves the EU. Take, for instance, the subject area of agriculture. This is a devolved matter, but in practice the devolved institutions’ room for manoeuvre is often limited because the EU plays such a large part in this area. When the UK leaves the EU, EU-related restrictions on devolved competence in relation to agriculture would, by default, fall away, and the devolved institutions would begin to be able to legislate in that sphere free from EU law-related constraints. But the Bill does not allow that to happen. It prevents such powers from flowing back to the devolved institutions, instead diverting them to the UK Parliament and Government. The policy reason is that EU law has served, in many areas, to provide not only a common EU legal framework but also a common UK legal framework — and there is a concern that if all of these powers are immediately returned to devolved bodies, that common UK framework, and so the UK’s own internal market, may be jeopardised. From one perspective, this is unremarkable, not least because it in effect maintains the status quo: devolved institutions cannot breach EU law now, and they will be limited by retained EU law in the future (at least until powers are released back to them under a mechanism contained in the Bill). But from another perspective, this amounts to nothing less than a ‘naked power grab’, which is how the First Ministers of Scotland and Wales described the Bill in a joint statement. And the Scottish and Welsh Governments have now published joint proposed amendments to the Bill, removing any obstacles to EU competences being returned to devolved institutions in devolved subject areas immediately upon Brexit.

A question then arises about how these legal implications of the Bill will play out in terms of constitutional politics. Tension between London and the devolved capitals — in particular Edinburgh and Cardiff — is acute. But a more particular issue arises too concerning the ‘Sewel convention’. Does it apply to the Bill? And, if it does, what happens if the Scottish Parliament and the Welsh Assembly refuse to give their consent to the Bill, assuming that the amendments proposed by the Scottish and Welsh Governments are not made? As to whether the convention applies in the first place, the UK Government appears to have conceded as much, in that it has said that it will seek legislative consent from the devolved legislatures. There is certainly a strong argument that Sewel applies, given that, as noted above, the Bill adjusts devolved competence. Admittedly, UK legislation that changes devolved competence — as distinct from UK legislation on devolved matters — did not fall within the original understanding of the convention. However, the convention is now generally understood to cover both types of matter.

The question of what would happen if devolved consent was withheld is a far from hypothetical one. The Scottish and Welsh Governments have issued ‘legislative consent memoranda’ to their respective legislative assemblies, indicating that they cannot recommend that legislative consent is granted to the Bill in its current form. The prospect thus arises that, unless the Bill is amended by the UK Parliament, the Scottish and Welsh legislatures’ consent to be it may not be forthcoming. In such circumstances, a breach of the Sewel Convention would arguably occur if the UK Parliament went ahead and enacted the Bill anyway. We say ‘arguably’ because it might be contended that the convention only provides that the UK Parliament will not ‘normally’ legislate on relevant matters in the absence of devolved consent, and these are anything but ‘normal’ circumstances. However, such sophistry is unlikely to cut much ice with the devolved institutions.

In the light of the Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, there is little prospect of judicial enforcement of the Sewel convention. As the Court put it in that case, judges ‘are neither the parents nor the guardians of political conventions; they are merely observers’. So while judges ‘can recognise the operation of a political convention in the context of deciding a legal question’, it is not, according to the Supreme Court, open to judges to ‘give legal rulings on its operation or scope’. Nor did it make any difference that the Scotland Act 1998 (as amended by the Scotland Act 2016) acknowledges the convention (as the Government of Wales Act 2006, as amended by the Wales Act 2017, now does too). The Sewel convention, its legislative acknowledgement notwithstanding, is still a convention.

From all of this, two conclusions follow. The first is that while talk of ‘constitutional crises’ amounts, more often than not, to relatively little, there is a very real possibility of such a crisis in this context. The UK’s territorial constitution — in particular, the bonds that tie Scotland to the rest of the UK — is already fragile, and the notion (whether or not it is accurate) that the UK Government and Parliament are riding roughshod over the devolution settlements in pursuit of Brexit is a particularly toxic one. Second, if such a crisis occurs, its resolution will have to be sought in the political, as opposed to the judicial, arena. As already noted, the courts, following Miller, are unlikely to rule on whether the Sewel convention has been breached, let alone enforce it. In this regard, then, the notion of the UK as a ‘political’ constitution continues to hold. Whether the political systems of the UK are capable of managing the existential risk posed by Brexit to the UK is, however, something that remains to be seen.