The Substantive Problems with the EU (Withdrawal) Bill

Paul Daly September 26, 2017

This is the second in my series of posts on the EU (Withdrawal) Bill. The introduction to the series is here. The first post, on the conceptual problems with the Bill, is here.

There are several substantive problems with the Bill, relating to the scope of the powers granted to ministers, the conditions on the exercise of the powers, the limitations placed on the exercise of the powers, and the separation of powers. The powers I will discuss below are essentially, as we shall see, law-making powers; they can fairly be described as Henry VIII clauses, because they enable ministers to modify primary legislation: to legislate by regulation.

In general, the substantive problems arise because the terms of Brexit are not yet known. A spectrum of possibilities exists but it is impossible in the absence of clear policy decisions made by the government to know where on the spectrum Britain will land. Perhaps there will be a ‘No deal’ Brexit, with Britain forced to trade on World Trade Organization terms. Maybe there will be a ‘Flexcit’, with Britain remaining a member of the European Economic Area. And the possibility of a ‘transitional’ or ‘interim’ or ‘implementation’ arrangement complicates matters further, by adding another dimension to the foreseeable outcomes. Without knowing in advance where Britain will land, the drafters of the Bill have been forced to provide for extraordinarily broad powers. As the government’s delegated powers memorandum explains (at para. 4), “this Bill will be before Parliament at the same time as negotiations with the European Union are taking place”. Consequently:

…the solutions might change, and we also need to protect the UK’s negotiating position, so we cannot make public all the details of the secondary legislation that we expect might be made under these powers. There are also other reasons why, in particular policy areas, decisions might not yet have been taken as to how the powers in this Bill will be exercised.
It would, however, be extremely helpful to those drafting and scrutinising the Bill if the “solutions” were at least known in broad outline, failing which the “other reasons” could usefully be detailed. As it is, the Bill seems to have been designed to implement objectives that are not yet known, with the result that the powers it contains are very broad indeed.

Scope of Powers

The most significant powers are contained in clauses 7-9, though there are others squirreled away in unusual places. Clause 7 is the the primary provision. It would allow a Minister to “make such provision as the Minister considers appropriate to prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law” arising from Brexit. Meanwhile, clauses 8 and 9 provide for similar powers in respect of international agreements and the Article 50 withdrawal agreement respectively. Clause 17, apparently designed to make consequential and transitional provisions, allows the executive to “make such provision as the Minister considers appropriate in consequence of this Act”.

When one turns to the Schedules to the Bill, other sweeping regulatory powers materialise. Schedule 7, Part 1 enables ministers to make regulations without prior parliamentary approval:

3 (2) The instrument may be made without a draft of the instrument being laid before, and approved by a resolution of, each House of Parliament if it contains a declaration that the Minister of the Crown concerned is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved (see similarly Schedule 7, Part 1, para. 11).
Parliamentary approval will have to be sought within one month and if it is not forthcoming the regulation is annulled (Schedule 7, Part 1, para. 3(3)), but this does not affect the validity of anything done under the regulation in the intervening period (para. 3(6)).

In addition, Schedule 8, Part 1 provides:

3 (1) Any power to make, confirm or approve subordinate legislation which was conferred before exit day is to be read, on or after exit day and so far as the context permits or requires, as being capable of being exercised to modify (or, as the case may be, result in the modification of) any retained direct EU legislation.
Presumably these existing provisions can only be used for the purposes they were originally drafted to serve, with the proposed addition of the power to modify retained EU law, but this nonetheless represents a significant extension of the scope of such existing provisions, the scale of which is loosely defined and thus unpredictable.

The temporal scope of some of these powers is limited. Clauses 7 and 8 contain sunset provisions. As Clause 7(7) has it, “No regulations may be made under this section after the end of the period of two years beginning with exit day” (whenever, that is, exit day happens to be). Clause 9 may not be used after exit day (clause 9(4)). But the provisions in the Schedules contain no such temporal limitations. Clause 17 does not seem to be time limited either.

The clause 7 power may be used to “make any provision that could be made by an Act of Parliament” (clause 7(4): see similarly clause 8(2) and clause 9(2)). It is difficult to know what to make of this last, rather bombastic, statement.

On the one hand, it communicates a desire to grant broad powers to Ministers, allowing them to modify primary legislation without going through the ordinary parliamentary process.

On the other hand, the power obviously has to be read in context: unlike an Act of Parliament, which can be used to address any subject (including, as Dicey famously suggested, smoking on the streets of Paris), clause 7 can only be relied upon to remedy failures or deficiencies in the statute book as a result of Brexit. Indeed, clause 7(2) gives a list of illustrative examples of failures or deficiencies: for instance, where “retained EU law…confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it”. But we have already seen, with the threat to remove rights from EU nationals in the event of a ‘No deal’ scenario, that Ministers might take a broad view of “failures” and “deficiencies” captured by clause 7 (see also para. 26 of the delegated powers memorandum). And clause 7(1) is phrased in subjective terms — “as the Minister considers appropriate” (though there is a long history of such subjective provisions being read quite narrowly by the courts).

Indeed, it might even be possible for the clause 7-9 powers (and if not them, then the regulation-making powers contained in clause 17) to extend the temporal scope of the clause 7-9 powers, certainly in a situation where some “failures” and “deficiencies” persisted even two years after Brexit: after all, a power to do by regulations anything that can be done by an Act of Parliament would include modifying the EU (Withdrawal) Bill itself (see also the 20th of Professor Elliott’s questions).

Conditions on Exercise of Powers

It follows that, as the Bill stands, the conditions on the exercise of the law-making powers are nebulous. “Deficiencies” and “failures” of “EU retained law” are new terms, the meaning of which is far from obvious. Even “urgency”, a more familiar concept, does not admit of ready definition in the present context.

The conditions precedent to the exercise of the clause 7-9 powers could easily be made more robust. For instance, the Civil Contingencies Act 2004 contains a so-called ‘triple lock’: the emergency powers available under the Act can only be resorted to where there is a threat of serious harm; where it is necessary to make provision on an urgent basis; and where the effects of the powers would be proportionate to the aims sought to be achieved. One of the proposed amendments (p. 23) to the EU (Withdrawal) Bill seeks to achieve a similar effect by adding a new clause 7(6A) to impose conditions on the clause 7 powers:

that—
(a) the policy objective intended to be secured by the provision could not be secured by non-legislative means;
(b) the effect of the provision is proportionate to the policy objective;
(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;
(d) the provision does not remove any necessary protection;
(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;
(f) the provision is not of constitutional significance.
This language, drawn from s. 3 of the Legislative and Regulatory Reform Act 2006, aims at the laudable objective of narrowing the scope of the clause 7 powers. At first glance, these conditions might be too onerous for present purposes: many of the technical changes to statutes and delegated legislation post-Brexit will be minor enough that questions of proportionality or resort to other means will simply not arise. But a set of conditions tailored to the unique challenges of Brexit would certainly be desirable.

Limitations on the Use of the Powers

Given the scope of the powers and the nebulous conditions for their exercise, it is unsurprising that their exercise is proposed to be subject to some limitations. Clause 7(6) forbids the making of regulations that

(a) impose or increase taxation,
(b) make retrospective provision,
(c) create a relevant criminal offence,
(d)…implement the withdrawal agreement,
(e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or
(f) amend or repeal the Northern Ireland Act 1998…

Clause 8(3) is to similar effect, although it does not rule out regulations in respect of “taxation”. Clause 9(4) is also similar, though regulations in respect of “taxation” are barred. There is no mention in Clause 8 or 9 of the Northern Ireland Act 1998, though this is unsurprising because provision may need to be made on Brexit in respect of the Good Friday Agreement and the Irish border.

To these prohibitions, one is tempted to add common law restrictions: it is now a venerable principle of the common law that broad powers cannot be used to eliminate common law rights (such as access to a court); indeed, it is clear that Henry VIII powers to modify primary legislation by regulations will be read narrowly. It is unclear whether these would function as effective limitations on powers to “make any provision that could be made by Act of Parliament”, but one would expect the courts to take a robust approach to the protection of common law rights.

One can only be less sanguine about the fate of rights derived from EU law. At least some of these would be incorporated into domestic law under clause 4 (see para. 89 and accompanying table of the Explanatory Notes). But prospectively they will then be highly vulnerable to elimination by exercise of the clause 7-9 powers. Certainly the government’s attitude towards the making of new arrangements for EU nationals living in the United Kingdom in the event of a ‘No deal’ scenario does not augur well for robust protection of rights (such as free movement of workers) derived from EU law.
Separation of Powers

Few would deny the need to give ministers additional powers to cope with the demands of implementing Brexit. As Professor Alison Young puts it, “there is a need to ensure that powers are broad enough to ensure a smooth transition”. Indeed, few would deny that many uses of the powers contained in the Bill would concern technical matters properly dealt with by regulations. But the Bill does not attempt to distinguish between the interstitial technical matters that can be left to ministers and important policy questions that ought to be reserved to Parliament. The House of Lords Constitution Committee puts the point well in its Interim Report on the Bill:

We are concerned about the delegated powers the Government is seeking in the European Union (Withdrawal) Bill. The number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw. They would fundamentally challenge the constitutional balance of powers between Parliament and Government and would represent a significant—and unacceptable—transfer of legal competence (at para. 44).

And, as we shall see in the final post in this series, on the procedural problems with the Bill, the scrutiny mechanisms proposed do not address the concerns I have detailed in this post.

This content has been updated on September 26, 2017 at 16:33.