Short Cuts

Sionaidh Douglas-Scott

The EU (Withdrawal) Bill was given its first reading in Parliament on 13 July. This is the most important bill to come before Parliament for decades, but it is only one of many pieces of domestic legislation that will be necessary to give effect to Brexit. Bills will also be needed to deal with immigration, customs and agriculture, for example. And there will have to be a great deal of secondary legislation, which changes existing legislation without the need for a new Act of Parliament.

The EU (Withdrawal) Bill itself raises all sorts of controversial issues, starting with its title. The bill has now formally lost the grandiose title of Great Repeal Bill, bestowed when it was introduced by Theresa May at the Conservative Party conference in October last year. The 1832 Representation of the People Act was better known by its grander, informal title of Great Reform Act. Indeed, this might be an apt precedent: the presence of the word ‘reform’ in its title was misleading, given that it did not reform the franchise greatly. Similarly, the current bill won’t repeal EU law but will retain it, by transferring all relevant EU law into British law – perhaps the greatest ever legal transplant in the UK. But the bill will repeal the European Communities Act 1972 (the gateway through which EU law becomes domestic law), and will also provide government ministers with wide-ranging powers to repeal or change nearly fifty years of EU law with very little parliamentary scrutiny and, they presumably hope, not much public or media attention either.

As the Financial Times noted, many readers will need a legal translator to understand the bill’s effects; many lawyers will also find it obscure. More than fifty years of EU membership cannot be undone easily. Its three main tasks are, first, to repeal the European Communities Act; second, to convert existing EU law to UK law; and third, to provide for a process of repealing or amending converted or retained ex-EU law by secondary legislation to make it fit for domestic use. This gigantic task of legislating for Brexit poses crucial questions: how to balance the need to ensure the UK is ready to leave the EU against the imperative for effective democratic scrutiny of that process; and how to maintain the devolution settlement to the satisfaction of Scotland, Wales and Northern Ireland, given that a large part of EU law concerns matters that have been devolved, and those nations will be suspicious of a power grab if all EU law is repatriated to Whitehall.

Transferring existing EU law into domestic law is essential if there are not to be huge gaps in UK law after Brexit. The problem is the magnitude of the task. It is hard to give exact estimates, but a huge amount of UK law derives from EU law. In autumn 2016, Whitehall departments were asked by the Department for Exiting the EU to assess how much European legislation affected their work. Defra estimated that about 80 per cent of the laws that affect its actions have an EU dimension.

The government’s position is that the bill’s main purpose is to ensure a ‘functioning statute book’ – to make sure there’s legal continuity after exit day. There are historical precedents. For example, Article 73 of the Irish Free State Constitution Act of 1922 stated that the laws in force in Ireland when the union with Great Britain was dissolved were to ‘continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas’, the new Irish Parliament. Had Scotland voted for independence in 2014, the Scottish Independence Bill provided that all the laws in effect before independence were to continue to have effect until such time as the independent Scottish Parliament might choose to change or repeal them. This principle of continuity of laws also featured in the independence legislation enacted by Westminster in relation to the UK’s former colonial and overseas territories. But because of the singular, complicated way in which EU law has entered national law, a simple ‘all former EU law continues in force’ won’t work. Clauses 2, 3, 4, 5 and 6 of the EU (Withdrawal) Bill create a new body of law known as ‘retained EU law’, which is complex enough to require five different categories. For example, Clause 2 covers domestic legislation implementing EU law, which is to be preserved, while Clause 3 covers direct EU legislation, which is to be converted. These clauses create a whole new category of retained EU law, and much of the Withdrawal Bill sets out rules and arrangements to deal with it.

Since the Conservatives now lead a minority government the House of Lords is likely to play an influential role in the passage of the bill. The Salisbury-Addison Convention, which constrains the Lords from voting down a bill that seeks to enact a manifesto pledge, does not apply to minority governments. The Parliament Acts of 1911 and 1949 removed the power of the House of Lords to veto legislation, enabling them only to delay legislation for one session – but the current parliamentary session will, unusually, last for two years. Delaying the EU (Withdrawal) Bill for one parliamentary session would take us beyond the anticipated Brexit date, and there is a very strong need for legislation to be in place by that date. This places the Lords in a powerful position to require amendments to and modify the contents of the Withdrawal Bill, if it is to be adopted in time for Brexit.

Two aspects of the bill cause particular concern: the powers it gives ministers to legislate and its impact on devolution. (There are of course other areas of contention, the omission of the Charter of Fundamental Rights from the body of retained EU law being a glaring one.) Brexit will require thousands of pages of secondary legislation. The government white paper on the Great Repeal Bill acknowledged that as many as a thousand such measures will be needed to ‘correct’ the statute book. Clause 7(1) of the Withdrawal Bill holds that ‘A Minister of the Crown may by regulations 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 the withdrawal of the United Kingdom from the EU.’ These powers could be used for relatively uncontroversial matters such as deleting references to EU law, or EU institutions, which will be redundant after Brexit. But the problem is that, as defined in the bill, the powers given to ministers are vague and almost without limit (there are some safeguards: the powers may not be used to create new criminal offences, for example, or to impose taxation). These sections of the Withdrawal Bill include so-called Henry VIII clauses, which enable primary legislation to be amended or repealed by secondary legislation. As the name might suggest, such clauses are essentially undemocratic and wouldn’t demonstrate that Parliament was taking back control, since they permit ministers to override existing legislation with cursory parliamentary scrutiny.

Most of the secondary legislation will go through Parliament under the so-called ‘negative procedure’, which allows a statutory instrument to become law without debate unless there is an objection from either House. The last time the Commons rejected such a measure was in 1979. The Withdrawal Bill does not propose new methods of scrutiny for this vast raft of secondary measures but proper scrutiny would have very serious implications for MPs’ workloads and would test the capacity of the House of Commons. According to the bill, the use of these exceptional ministerial powers is limited by a sunset clause to two years post Brexit, but it’s doubtful whether there will be sufficient time to deal with all this secondary legislation.

There’s a dilemma here: in order to get the statute book ready for Brexit, speed and expedition is necessary, otherwise there will be legal chaos on exit. But if Parliament adheres to the bill’s proposals, there could be a serious lack of democratic scrutiny. This is one of the unpleasant paradoxes of Brexit – either way, there are unpalatable constitutional consequences. As the former lord chief justice, Lord Judge, said recently, ‘my main concern is that by the time the Brexit process has finished its parliamentary journey, we shall have irremediably cemented lawmaking by unscrutinised legislation into our constitutional arrangements.’

The Brexit process is intended to remove the limits and checks that EU law places on national legislation, ensuring that competences will be ‘repatriated’ (this is the word used in the Great Repeal Bill white paper) to the UK, but it’s unclear how this will affect devolved powers. The devolution statutes of 1998 set out which policy areas are devolved, and the parliaments in Edinburgh, Cardiff and Belfast (until recently) legislate for them. But the government’s approach is that even in the case of areas that were run by the devolved parliaments, such as agriculture and the environment, the repatriation process will first return them to Westminster and then it will be decided whether they will return to their former status. This appears to violate the devolution settlement.

At present, devolved legislatures may not legislate contrary to EU law, but Clause 11 of the Withdrawal Bill amends the Devolution Acts to prevent them from altering retained EU law, even if it deals with a devolved matter. This deprives devolved institutions of the powers that would have returned to them by default on withdrawal, transferring them instead to UK level institutions. It is unsurprising that in a joint statement delivered on the day the Withdrawal Bill was published the Scottish and Welsh first ministers, Nicola Sturgeon and Carwyn Jones, described the bill as ‘a naked power grab, an attack on the founding principles of devolution’.

Under the Sewel Convention (now enshrined in law in the Scotland Act 2016), Westminster requires the consent of the devolved legislatures before it can legislate on devolved matters. The government has confirmed that it will seek this consent for the EU (Withdrawal) Bill. What will happen if consent is refused, as Sturgeon has threatened? The government may attempt to secure consent by offering some compensation to the devolved nations, such as devolution of other powers; greater involvement in the Brexit negotiations under Article 50; or some financial reward. Intra-UK relations to date suggest this is unlikely, though the government’s deal with the DUP illustrates that money can be found when it is politically expedient. Alternatively, the government could attempt to force through the EU (Withdrawal) Bill, relying on the Supreme Court’s recent holding in Miller v. Secretary of State for Exiting the European Union that the Sewel Convention is not legally enforceable, and that the doctrine of parliamentary sovereignty means that Westminster is supreme and can legislate on any matter, including devolved issues. Even if it’s legally sound, such a move would cause a constitutional crisis and threaten the integrity of the UK. The possibility of another Scottish independence referendum still hovers in the background.

The potential for such a crisis illustrates a further problem for the British constitution. Despite all the talk after the 2014 independence referendum that the Scottish Parliament could become ‘the most powerful devolved parliament in the world’, the UK is not a federal state in the sense that legally guaranteed powers are granted to the devolved authorities. This becomes a problem when a devolved nation takes a sharply different view, as Scotland has on Brexit. Devolution has developed in a rather ad hoc way; there has been little attempt to formulate the constitutional principles behind it. Brexit brings these issues into sharp focus, but without suggesting a solution, other than the imposition of parliamentary sovereignty. There is little evidence that Brexit will provide an occasion for a solution to these problems. It is unlikely that a federal UK or a written constitution will emerge, however much new constitutional arrangements might be needed to deal with Brexit. Advocates of Scottish independence, or a united Ireland, will have little enthusiasm for arrangements that would entrench them in the UK, even if procedures were established to protect the different national groups within the state. And those satisfied with Brexit are unlikely to want a written constitution or federalism, given that a desire for strong parliamentary sovereignty was a motivation for their Euroscepticism in the first place. It was suggested by J.R. Seeley that the British built an empire and then decolonised in a ‘fit of absence of mind’. The same may be true of Brexit. Britain joined the EEC without any real enthusiasm, and now risks leaving the EU in a state of insouciance as to the consequences. And the consequences may well be extreme.