European Union (Withdrawal) Bill inquiry

Following the referendum on the UK’s membership of the European Union, and the triggering of Article 50 of the Treaty on European Union, the Government introduced the European Union (Withdrawal) Bill to give effect to Brexit. The Bill is designed to address the significant legal challenge that will result from the UK leaving the EU. By preserving existing EU law as it currently applies in the UK, and converting it into domestic law, it seeks to provide continuity and legal certainty on and after exit day. This is an essential task in order to avoid legal chaos. It is also uncharted territory; it is a legal undertaking of a type and scale that is unique and unprecedented, posing significant challenges for both the Government and Parliament.

The body of EU law is found in a number of different places, and in a number of different forms. Some is embodied in existing UK primary legislation; some in secondary legislation. Other elements of EU law are directly effective in the UK (by virtue of the European Communities Act 1972), but are not actually written anywhere in the UK’s statute book. Yet further elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union, regulatory rulings by EU agencies, or in the interpretation of our own courts.

The task of adapting the body of EU law to fit the UK’s circumstances following Brexit is complicated not only by the scale and complexity of the task, but also by the fact that in many areas the final shape of that law will depend on the outcome of the UK’s negotiations with the EU. Yet preparations for the amendment of EU law need to be made before it comes into effect as UK law, in order that those changes will take effect on the day of Brexit, and this Bill seeks to provide for them. These amendments will sometimes be minor, for example removing references to EU institutions, and sometimes substantial, such as where an EU regulatory regime needs to be replaced with a UK regime.

We gave early consideration to these challenges in our report on The ‘Great Repeal Bill’ and delegated powers. We acknowledged that the Government would need abnormally wide powers to deliver legal certainty but we said that such powers would need to be tightly circumscribed and subject to close scrutiny by Parliament, for which new scrutiny mechanisms would be needed. Following the publication of the Bill, we examined in our interim report whether the Government had addressed our recommendations. We were disappointed that they had not taken our advice on board and we concluded that the Bill raised a series of profound, wide-ranging and interlocking constitutional concerns.

In this fuller assessment of the Bill we examine these concerns in detail. We conclude that the Bill risks fundamentally undermining legal certainty in a number of ways. The method proposed to create ‘retained EU law’—EU law that is being copied over into the UK statute book—will cause constitutionally problematic uncertainties and ambiguities:

• The Bill is not clear exactly what retained EU law will contain; it potentially captures laws that do not need to be saved and creates duplicate copies of laws that have already been transposed into domestic law.

• The Bill transfers rights under EU law, regardless of their applicability post-Brexit, without sufficient clarity as to how they might be amended later.

The European Union (Withdrawal) Bill raises a series of profound, wide-ranging and interlocking constitutional concerns. Indeed, it is difficult to think of areas of constitutional concern that are not deeply engaged by the Bill. In this report, we draw attention to three broad constitutional themes that emerge from our analysis. Those themes respectively concern the relationship between Parliament and the executive, the rule of law and legal certainty, and the stability of the UK’s territorial constitution.

The executive powers conferred by the Bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government. In the broader context, it is not merely that the Bill invests the executive with deep legislative competence by authorising the making of “any provision that could be made by an Act of Parliament,” it is that the Bill contains multiple such powers, which overlap to a very considerable extent, and which are not subject to an enhanced scrutiny process as we recommended in our previous report. In this way, the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency.

The multiple uncertainties and ambiguities contained within the Bill, to which we draw attention in this interim report, raise fundamental concerns from a rule of law perspective. The capacity of the Bill to undermine legal certainty is considerable. Whenever a Bill is unclear, rule of law concerns arise. But such concerns are especially troubling in relation to a constitutional Bill such as this.

The Bill is fundamental to the content and application of the legal system post-exit since it determines both the content of large parts of the law (“retained EU law”) and the rules of priority and interaction as between retained EU law and other parts of domestic law. In such circumstances, legal certainty is essential, and the apparent multiple ambiguities in the Bill are deeply problematic.

Individuals, organisations and the government need to know what exactly the law is, and what their rights and responsibilities are, post exit, without having to resort to litigation.

The UK’s departure from the European Union will have profound consequences for the devolution settlement within the UK. The ambiguities and uncertainties in the Bill extend to issues of devolved competence and this has implications for the balance of the power within the Union and the future of the devolution settlements.

Overall, we conclude that the Bill is highly complex and convoluted in its drafting and structure. This is not to deny that it must inevitably grapple with a set of difficult legal issues. But it is a source of considerable regret that the Bill is drafted in a way that renders scrutiny very difficult, and that multiple and fundamental constitutional questions are left unanswered. We will consider all of these issues in greater detail in our forthcoming inquiry on the Bill.