EU (Withdrawal) Bill: You say tomato; I say unprecedented Executive power.

The morning after the day before?  

A burst of activity, a moment of consideration, then a unending list of knowing questions hard to answer.  

Yesterday, legal Twitter counted down to the anticipated publication of the formerly-Great, Repeal Bill.  Many then took pause to consider the 19 Clauses and 9 Schedules of the EU (Withdrawal) Bill.  The Bill will have its Second Reading in Parliament in the Autumn.  This morning's first reactions in the press - from a necessary "technical measure" to the end of democracy itself - have added little clarity to the important discussion yet to come.  

However brief the Bill may be, the Financial Times today is right; many readers will need a legal translator to understand its effects.

Repeal, withdrawal and power

Let's start with the headlines.  

Many have already noted that the Bill's original moniker was misleading.  The Bill proposed by the Government was never about repeal - Great or otherwise - but about power.  

Is its new incarnation more accurate?  The short title - the EU (Withdrawal) Bill is not illuminating.  The long title helps little, but is accurate.  The Bill is "to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU".  The ultimate goal of the legislation is to facilitate withdrawal and to ensure that Parliament faces up to the extensive legal consequences of Brexit.  However, the question of how the Government proposes that our legislature should do that must be subject to close scrutiny both in Parliament and in public dialogue.    

Clause 1 of the Bill does indeed provide for the repeal of the European Communities Act 1972.  However, the devil is in the detail of the "other provision" to be made.  The substantive provisions of the Bill, in Clauses 2 - 19 create a broad framework for the remaking of the law as it now stands, to unpick, reaffirm or repeal laws which are the legacy of our EU membership.  It is in these provisions where the potential for debate lie.  As the Government fact sheets published with the Bill make clear - on topics from workers' rights to environmental law, from delegated legislation to devolution - the Bill's reach is wide. 

The Bill's substantive effect is to create power for Ministers to reshape the law post-Brexit.  The purpose may be to facilitate withdrawal, but the means by which it would achieve that would be to delegate significant legislative power to the Executive.   (Withdrawal as a shorthand for creation and power?  There's a feminist joke in there somewhere.)    

The spectrum of first views on the Bill are stark.  This was never going to be a case of minor disagreement.  No, "you say tomato, I say tomato."   Rather, "You say tomato, I say unprecedented Executive power". 

So, how would the Bill work then?

In brief:

•  The Bill will repeal the European Communities Act 1972 (Clause 1).  Whether this is necessary or not, is a question for academic debate, but it sets the scene for the purpose of the Bill.  It sets a marker for the Government's intention to "break the link" between EU and domestic law. (see the excellent commentary from Professor Mark Elliott, The EU (Withdrawal) Bill: Initial Thoughts, here.).
•  Clause 2 provides for "EU-derived domestic legislation" to become part of domestic law on "exit day".  Exit day is to be set by Ministers in secondary legislation (Clause 14(1)).  Exit day need not be on the day of the UK's withdrawal from the EU.    
• EU-derived domestic legislation is defined by the Bill in Clause 2(2).  It includes regulations made under the ECA 1972 but is supplemented by a catch-all, to scoop up any enactment relating "otherwise to the EU or the EEA".
•  Exemptions are carved out of the statutory proposal to incorporate all relevant EU derived legislation at the point of our withdrawal.  Most significantly, Clause 5(4) makes clear that the Charter of Fundamental Rights of the EU will not be considered to be part of domestic law following withdrawal.  (However, the general principles of EU law, on which much of the Charter is based, will continue to be part of the post-Brexit legal framework (Clause 5(5)).  A post on the complex implications of the Bill for human rights will wait for another day.  Earlier analysis of the risks posed by withdrawal is available here.)
• Clause 3 provides for the incorporation of directly effective EU legislation into domestic law on exit day.  This means that EU law which currently affects how we live and takes effect in the UK, but which is not implemented in primary or secondary legislation, will not just drop away.
• Clause 4 provides for any other EU rights, remedies, obligations or liabilities which would have taken effect by virtue of the ECA 1972 remain in force on exit day.
• Clause 5 ends the supremacy of EU law on exit day.  That principle is derived from the notion that EU law should create a level playing field across Europe when it applies in Member States.  It will continue to apply after exit day when it is relevant to the interpretation of the "EU-derived domestic legislation" incorporated into domestic law by the other sections of the Bill.  
• Clause 6 removes the right of anyone to take a case on EU-derived domestic legislation or any other matter to the Court of Justice of the EU ("CJEU").  It provides that domestic courts are no longer bound by the principles and decisions made by the CJEU made after  exit day (Clause 6(1).  Any question as to the "retained" EU law is to be decided in accordance with the pre-withdrawal case law and the general principles of EU (Clause 6(3)).  The Bill provides that the UK Supreme Court is not bound by these provisions of EU jurisprudence, but may only depart from them when applying the standard it would apply on departing from earlier Supreme Court precedents (See Clause 6(4)-(5)) (The High Court of Justiciary in Scotland is subject to similar rules when sitting as a highest court of appeal (Clause 6(4)(b)).  No court or tribunal is to bound by earlier decisions on EU law which it would not "otherwise be bound by" (Clause 4(c)). Ordinary rules of precedent will apply.  

Shaping the brave new world?

The remainder of the Bill deals with the creation of powers for Ministers and devolved authorities to make changes to the law resulting from the withdrawal of the UK from the EU.  These powers are exceptionally broad.  

•  Clause 7 provides Ministers with the power to make changes to the law in secondary legislation which they consider "appropriate to prevent, remedy or mitigate" either a "failure" of the retained law to "operate effectively" or "any other deficiency in retained EU law".   
• These deficiencies are not defined, but are supplemented by a non-exhaustive list of circumstances where the Minister might act.  These include a list of important practical outcomes which might result from automatically incorporating all EU laws into the domestic statutory framework.  For example, if a law has no "practical application" (Clause 7(2)(a)) or where it confers functions on EU entities which are no longer relevant to the UK (Clause 7(2)(b)) or where it contains references to the EU which are no longer appropriate (Clause 7(2)(g)).  
• However, these and other features of the list might involve decisions which are beyond technical and could involve complex decisions about the rights of individuals or businesses in the UK.  For example, Clause 7(2)(c) and (e) make provision for or in connection with "reciprocal arrangements" between the EU and its institutions and the UK.  This could, for example, govern a whole range of cross border provisions for cooperation, including on criminal investigation, intelligence and data-sharing between police forces.  Could it - or should it - empower the Government to rewrite the operation of the reciprocal arrangements currently facilitated by the European Arrest Warrant, for example, in secondary legislation?
• It is clear that these powers are "Henry VIII" powers, which enable Minister to amend Acts of Parliament through delegated legislation (see Clause 7(4), for example). It makes provision for the expansion or reduction of the powers of public bodies and officials and for the creation of new public bodies or responsibilities (see Clause 7(5)). The powers empower Ministers to do anything an Act of Parliament could do, including amend the provisions in the Bill itself.
• Ministers will have the power to create new criminal offences, provided that they would not enable a sentence of longer than 2 years custody to be imposed on an adult offender (a person over 18 in England and Wales and 21 in Scotland or Northern Ireland)
• The limitations on these new powers include that:
  • They can't increase taxation (Clause 7(6)(a).
  • They must not be retrospective (Clause 7(6)(b).
  • They must not be made to implement the withdrawal agreement (separate powers are provided for this purpose) (Clause 7(6)(d).
  • Relevant criminal offences are excluded (offences with penalties over 2 years custody) (Clause 7(6)(c).
  • Amendments to the Human Rights Act - or its repeal - are prohibited (although it is unclear how the remedying of a deficiency in EU law might lead to this result) (Clause 7(6)(e).
  • Similarly certain amendments to the Northern Ireland Act 1998 are prohibited (Clause 7(6)(f).

Further delegated powers would include a power to make delegated legislation to "prevent or remedy" any breach of the UK's international obligations arising from the law of the EU (Clause 8).  This would, give a broad power to Ministers to give effect to international law acts in domestic law.  

In addition, Ministers are empowered to make delegated legislation making any such provision as a Minister considers "appropriate" for the purposes of withdrawal if a Minister considers "such provision should be in force" on or before exit day (Clause 9). Specific provision is made on the powers of devolved authorities, which require careful and detailed consideration.

The powers extend to rewriting legacy law to restate it in a "clearer, more accessible way" or to make any supplementary, incidental or transitional provisions (see Schedule 7, paragraph 13(b)).  Ministers are also granted a broad power to make transitional and consequential provisions considered "appropriate" (Clause 17).

All of these powers are subject to sunset clause and will lapse two years after exit day (see Clauses 7(7), 8(4)) except the power related to withdrawal, which ends on exit day (Clause 9(4)).  How long the powers will exist will hinge on when Ministers determine to be exit day for the purposes of the Bill.  This need not be tied to the day of withdrawal (as outlined above).  

Who decides?

Concern about the proliferation of delegated powers lies in the limited power which Parliament has to scrutinise secondary legislation .  Unlike a Bill - where Parliament must consider its impact line by line - processes for the passage of delegated legislation significantly reduce the opportunity for Parliament to act.  This means that laws might pass with little or no democratic consideration.  

The Bill provides that many of the powers delegated to Ministers will be exercised by "Negative Resolution" (Schedule 7, paragraphs 1(3), 2(4), 5(3), 6(3) (3), 9, 10) .  This means that the powers are enacted and take effect unless one of the Houses of Parliament take steps to pass a motion to repeal it.  It is likely that there will be no debate at all unless a point of political controversy arises and politicians are moved to demand a debate.

"Affirmative Resolution" procedure - where a law only takes affect if approved by both Houses of Parliament - provides a limited form of Parliamentary scrutiny.  Although the statutory instruments must be voted upon in both Houses, there is rarely time for significant debate.  Amendments are not an option and draft regulations have to be voted on as a package.  It is very rare that instruments proposed by affirmative resolution are rejected.  The last time any secondary measure was defeated was in 1979.  The Bill proposes to restrict certain powers to affirmative resolution.  These include where regulations would:

• establish a new public authority; 
• expand he powers or functions of a public authority;
• impose a fee in respect of the actions of a public authority;
• create or widen the scope of a criminal offence;
• amend or create a new power to legislate;
• amend this Act (see Schedule 7 paragraphs 1(2), 2(3), 5(2), 6(2)).

Ministers broad consequential power to make transitional and other provisions is always by negative resolution, only subject to affirmative resolution where Ministers consider "it is not appropriate for the statutory instrument ... to be subject to no parliamentary procedure" (Schedule 7, paragraph 10(1)(b), 10(3)(b)).

Even where an affirmative order is to be used, the Bill provides for that procedure to be by-passed in "urgent" cases.  In "urgent" cases, approval is circumvented in favour of legislation taking effect for only a month, unless subsequently approved by Parliament.  Importantly, that month does not include any Parliamentary recess or prorogation longer than four days, so could extend for significantly longer than a calendar month.  Any acts done while the provisions were in force retain the force of law.  So, even when someone might be criminalised or extradited subject to such an urgent measure, it could not be challenged even after Parliament chose to strike it down.  An "urgent" measure is deemed urgent where a Minister is of the "opinion that, by reason of urgency, it is necessary" for that process to be used.  There are exceptionally few safeguards proposed (see Clause 11).

Comment

That these proposed powers are extremely broad and unprecedented is unsurprising. Debate is yet to come on their scope and their definition.  Articles will be written on Parliamentary oversight, scrutiny, democratic responsibility and our constitution. Others will deal with the propriety of the power granted to Ministers and to the Devolved Administrations, and how that division will affect the devolution settlement . The Delegated Powers Memorandum and the promised Human Rights Memorandum accompanying the Bill deserve careful dissection.  There are some important technical questions raised in the drafting of the Bill.  For now, there are a few points worth early consideration.  

Firstly, the scope and breadth of these powers is startling if not unexpected.  The previous high-water mark of delegated power in the Legislative and Regulatory Reform Act 2006 attracted immense criticism and required significant amendment before its passage.  The restrictions which would be placed on the powers in the Bill - including on criminal offences and taxation - appear to be modelled on its provisions for the reform of outdated legislation (see LRRA, Sections 5 and 6).  Yet, that Act imposes further and clearer limitations on the scope of the powers granted to Ministers and the means by which the powers might be exercised. The powers cannot be used to produce compulsory powers of entry, for example (LRRA, Section 7).  While the Bill proposes to limit the power to amend or repeal the Human Rights Act 1998, and limits the power to legislate retrospectively or to create serious criminal offences, it makes no specific limitation on the powers to make new law designed to protect the pre-existing rights of individuals.  This appears to be at odds with the previous recommendations of the Joint Committee on Human Rights that secondary legislation restrictive of individual rights should be subject to enhanced scrutiny (outlined here at page 62).  

Parliament is granted a power in the Legislative and Regulatory Reform Act 2006 to determine which procedure might be used to secure the passage of regulatory reform through Parliament, whether negative, affirmative or "super-affirmative" (see LRRA, Section 15).  In this Bill, many powers are presumed to be subject only to negative resolution requirements, subject to a number of defined limitations.  The House of Lords Constitution Committee recommended that a special statutory form of parliamentary triage be similarly built into this Bill.  A recommendation which has not been pursued (see Report, [132], here).

This breadth, if left intact, creates significant scope for challenge to subsequent delegated legislation including through litigation (see PLP v Lord Chancellor [2016] UKSC 39, for example.) This opens the door to renewed tension in the constitutional settlement between Parliament, the Executive and the Judiciary.  If Parliament wishes to abrogate its power, it should do so live to the possibility that individuals may seek a remedy in the courts should the Executive act unlawfully.  The Judiciary cannot and should not be treated as a safety net, as the scope of their power will be determined by the breadth of the delegation clearly authorised by the Bill.

Secondly, this exceptional Bill makes no exceptional provision for Parliamentary oversight.  It asks for Parliament to make a vast delegation of power, increasing Ministers powers to act, according to the very ordinary procedures for secondary legislation.   

Super-affirmative procedures are procedures which provide specific statutory options for increased scrutiny by Parliament of specific legislative proposals, short of the full range of scrutiny applied to primary legislation.  How they work - and the extent of scrutiny offered - depends on the specific statutory framework.  So, for example, in the Human Rights Act 1998, a super-affirmative procedure is provided for the passage of Remedial Orders pursuant to Section 10 (Schedule 2) (These powers, although criticised by critics of the Act, are only triggered when an issue has already been found to be incompatible with human rights by domestic courts or the European Court of Human Rights).  There is no provision in this Bill for any exceptional super-affirmative procedures to be considered, despite the earlier recommendations by Parliament that this would be appropriate in some circumstances.  This seems like an early point left for negotiation by the Government, designed to leave somewhere to go should the Bill meet the resistance expected in Parliament.  

Finally, while many rightly focus upon the clear need for a framework to deal with the legislative fall-out of Brexit; the need for speed and practicality should not override the requirement for Parliament to take responsibility for the shape of our law. The first question for Parliamentarians should not be how the powers the Bill proposes will operate, but whether the delegated powers are themselves are appropriate. 

Unfortunately, without a commitment to very close scrutiny and a full understanding of the breadth of EU law and its impact on the effects of domestic law, policy and practice, there is a real risk that the powers proposed will not be properly tested before they are put to a vote. 

If the casual reader needs a translator to understand the scope and impact of the Bill, Parliamentarians may need a bank of them before Autumn.  There's work yet to be done.  Case studies and examples should be provided to MPs on how Ministers might be empowered to change the law across the areas of EU competence where EU law will be transposed into domestic law on Brexit.  For example, how would this Bill empower Ministers to amend our participation in the Dublin process for the treatment of asylum seekers?  What about minimum standards for consumer protection, currently guaranteed by EU law?

The stated purpose of the Bill is to create certainty during the Brexit process.  A reading of the powers it proposes just serves to highlight how daunting and difficult the process of unknitting the legacy of our EU membership will be.  The Bill itself cannot render any part of this process more certain. Instead, it highlights the range of domestic law and practice, currently standing on EU law foundations, which will be shaken when withdrawal takes place and the Bill comes into force.  Great swathes of the substantive law might yet be "up for grabs". Whatever you think about the benefits or otherwise of EU membership, that kind of uncertainty creates a world of difficulty in planning for the future, whether for individuals or for businesses.

If the amendment of certain areas of law - or legislation with particular impacts on individual rights - should be restricted to primary legislation, then those powers should be reserved to Parliament.  If safeguards for individual rights are necessary, it is only during the passage of this Bill that it is likely that they will be achieved.

Many have commented on the already increasing use of secondary legislation to limit the role and effectiveness of Parliament.  This Bill would take an unprecedented leap in normalising the use of secondary legislation across the domestic statutory framework, from policing and crime to employment law.   It must be approached with care and time for reflection.  

For those at Westminster we trust to make our laws; the reading of this Bill must be done steeped the spirit of taking back control, not abrogating responsibility by delegating it wholesale to Ministers and leaving the courts to try to sort out any resulting mess that ensues.