The European Union (Withdrawal) Bill (Withdrawal Bill) grants powers to Ministers to adopt, amend or repeal EU-derived domestic legislation, exercisable after the UK leaves the EU. The effect is that Ministers will control what will become a significant part of the UK’s primary legislation without Parliamentary scrutiny. There is concern over possible political influence and bias as the powers are exercised. The Government argues that it is impracticable for all EU-derived legislation to be considered by the full Parliamentary process given the extent of the review exercise which would be required.
This paper suggests that, to minimise the risk of political interference, a non-political, private sector committee be established to provide oversight and scrutiny. The proposed committee would also help to reduce the burden on Government departments of reviewing EU-derived legislation to establish its long-term status in UK law.
Concerns over the extent of the delegated powers
A number of concerns have been expressed over the extent of the delegation of powers in the Withdrawal Bill in that, with some limitations, Ministers and Government departments will have power to confirm, amend or repeal a significant and important part of UK legislation. This could extend, for instance, to setting up new statutory regulatory bodies to oversee standards in various industries or services. As mentioned above, there is concern that the Government may exercise political bias or influence in the manner in which it approaches the task of adopting or amending the legislation, as there would be no balancing cross-party Parliamentary debate and discussion.
The Government argues that the extent of the exercise of reviewing all existing EU-derived legislation and making decisions as to its place in UK legislation for the long-term would be impracticable if it were to be managed through the full Parliamentary process. It would be likely to swamp Parliament for some years. However, even the delegation approach may be overwhelming for various Government departments addressing relevant legislation, given their other duties in respect of day-to-day operations. A report in the House of Commons library states that there are nearly 20,000 EU legislative acts in force, mainly directives, regulations and international agreements and a range of other instruments.[1]
The well-publicised amendments and clauses proposed by MPs in respect of the Withdrawal Bill address concerns over delegated powers but also significantly extend the scope of the Bill.[2] From currently addressing the repeal of the European Communities Act 1972, the temporary preservation of EU-derived legislation so far as it affects the UK and setting up a mechanism to resolve how that legislation will apply in the long-term, the amendments would require, amongst other things, the final agreement with the EU to be approved by Parliament or by national referendum, with rights of approval under devolved powers, as well as statutory backing to a transitional period before the UK finally leaves the EU.
So far as the extensive delegated powers are concerned, the amendments seek restrictions in respect of matters such as standards of equality, environmental and employment protection and consumer standards. The extent of the delegated authority would be more narrowly defined than is proposed in the Withdrawal Bill, and could only be exercised to make, confirm or approve subordinate legislation insofar as necessary to ensure that retained EU law continues to operate with equivalent scope, purpose and effect following the UK’s exit from the EU. Several amendments suggest Parliamentary review (perhaps through a joint committee of Lords and Commons) to decide which matters can properly be addressed by secondary legislation or whether full Parliamentary scrutiny is required.
Private sector committee to address some of the delegation concerns
With its slender coalition majority, the Government will consider how best to address the amendments tabled in order to ensure the Withdrawal Bill is passed by both Houses of Parliament. This is likely to involve adopting or compromising on some of the amendments in respect of the delegation of powers, including possibly the limitations proposed by the House of Lords constitution committee[3]. Thus, for instance, any amendments to existing EU-derived legislation that involve significant policy issues would be referred to cross-party scrutiny or the full Parliamentary process. However, there would remain the concern over political bias in reviewing the legislation generally and the process of deciding when wider scrutiny is needed. There is also the concern about the significant scale of the review exercise to be undertaken by Ministers and Government departments.
An approach which could address these concerns is that the review would be carried out by a committee of professionals in the private sector. The review committee could be chaired by a current or recently retired judge and comprise a core of practising or retired solicitors and barristers (and maybe other professionals) with experience of reviewing legislation in various sectors. The judge who would chair the committee would be chosen by a cross-party Parliamentary committee and the members of the review committee would be chosen by the cross-party committee and the judge.
The review committee would be independent, non-political, impartial and objective, taking a technical approach to its role. It would have a closely-defined remit to review and scrutinise all EU-derived legislation in the UK and, where appropriate, recommend whether it is no longer applicable to the UK and should be repealed, can remain and simply be adopted as long-term UK law or whether amendments should be made to ensure it is technically sound and workable. The committee’s remit, which might be included in the Withdrawal Bill, would require it to refer to the cross-party Parliamentary committee any legislation relating to matters which are subject to a restriction against inclusion in the delegation process. This will depend on whatever restricted matters are set out in the Withdrawal Bill but may include public policy issues, establishing a new regulatory body, and matters involving employment protection, human rights and the environment.
The review committee would liaise with the Minister and departments relevant for different areas of legislation under review. It would have power to seek views from academics, professionals and business experts in relevant spheres if it thinks appropriate. The cross-party Parliamentary committee would review its findings, in particular its recommendations that legislation should be repealed and where Parliamentary involvement is required. In cases where the review committee considers that the legislation can simply be confirmed or minor technical changes made, the proposals would follow the Statutory Instrument route, with the built-in Parliamentary protection for affirmative or negative approval. In cases where it considers that Parliament should be more directly involved, the cross-party Parliamentary committee would refer the matter to the relevant Minister to pursue a full Parliamentary approval route.
The approach that an independent committee, with a non-political and technical approach, should review all EU-derived legislation and recommend where no change or minor or significant changes are required, as described above, should help to overcome the concern that a political approach might be taken by the Minister in the process, yet ensure that where appropriate the Parliamentary process is engaged.
Further, the exercise should help to relieve Government departments of the considerable burden of reviewing all EU-derived legislation to decide whether and how it should be applied as part of long-term UK law.
Jonathan Rushworth, retired solicitor and member of Britain in Europe think tank.
The author would like to thank Dr Dimitrios Giannoulopoulos, Director, Britain in Europe think tank, Brunel University London, for his support and comments.
12th November 2017.
References
[1] House of Commons Briefing Paper: Legislating for Brexit: directly applicable EU law, CBP 7863 12th January 2017.
[2] The suggested amendments and clauses in respect of the Withdrawal Bill are set out at www.parliament.uk., which is regularly updated as further proposals are tabled. By way of example of the reasoning for some of the proposed amendments, see articles by Dominic Grieve QC MP and Frank Field MP in PoliticsHome for 12th and 19th October 2017 respectively.
[3] House of Lords Select Committee on the Constitution: The ‘Great Repeal Bill’ and delegated powers, 9th Report of Session 2016-17, published on 7th March 2017.