The European Union (Withdrawal) Bill’s passage through Parliament

Posted in UK and EU legal framework

The European Union (Withdrawal) Bill continues its progress through Parliament, currently in committee stage, which is expected to be concluded by Christmas. However, there remains some uncertainty as to the final form of the Bill, with several hundred amendments having been tabled so far.

Many of the concerns raised have related to issues concerning devolution and the extent of delegated powers, both of which were raised in earlier blog posts (here and here).

Beginning with devolution, both the Scottish and Welsh devolved legislatures have expressed support for the legislative aims of the Bill, i.e. to ensure a working statutory framework for the UK post-Brexit. However, objections have been raised as to the proposed mechanisms for achieving this and how it might impinge on areas of devolved competence. In particular, alarm has been raised as to the extent to which the Bill in its current form would constrain devolved bodies in the exercise of their powers and moreover, give UK Government Ministers powers to make changes to laws in areas of devolved competence.

At the present, there is considerable doubt as to whether the Welsh Assembly, the Scottish Parliament or the Northern Ireland Assembly would support a legislative consent motion endorsing the Bill, which could in turn give rise to constitutional problems, even if, legally, the absence of legislative consent would not prevent the UK Government from proceeding to enact the Bill.

Concern has been raised (including by some Conservative MPs) about the extent of Henry VIII powers (powers to use delegated legislation to amend primary legislation) contained in the Bill. One particular concern relates to the way that such powers have been expressed in subjective terms: for example, section 7 of the Bill gives Ministers wide powers to make regulations 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 UK’s withdrawal from the EU, when the Minister considers the retained EU law to be deficient in accordance with various criteria.

One of the stated objectives of campaigners for Brexit was to restore power to the Westminster Parliament. However, it has been  argued that the way the Bill is written reduces the power of Parliament and in turn increases the power of both the executive and the judiciary – who may be called upon to adjudicate upon ministerial actions through judicial review proceedings.

Another area of disquiet relates to the sheer scale of what is required to ensure a coherent legislative framework. It has been estimated that as many as 1000 new statutory instruments will be required under the Bill by the date of Brexit. Insofar much of the work cannot sensibly begin until more is known about what Brexit will look like, it will mean a vast amount of legislation having to be passed in a very short space of time. This in turn raises the obvious question as to how much scrutiny such legislation will receive.

All of this points towards the increased advantages of securing a transitional deal as soon as possible; something the Government has sought to assure businesses it is working towards.

Brexit: planning for the future as negotiations continue

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