In with the old, in with the new

It was never really going be a "repeal" Bill. And now the European Union (Withdrawal) Bill is out, it's clearer than ever that what the UK Government is proposing is new legislation on an unprecedented scale. The Bill gives all law with an EU origin as at exit day a new domestic status of "retained EU law". It goes on to equip Ministers with wide-ranging powers to make regulations to change the law to "prevent, remedy or mitigate" any "failure of retained EU law to operate effectively" or "any other deficiency in retained EU law" arising from withdrawal from the EU (Clause 7). There are parallel regulation-making powers to "prevent or remedy any breach" of the UK's international obligations flowing from withdrawal (Clause 8), and to implement the withdrawal agreement (Clause 9) - if, that is, the rather tortured negotiations currently taking place in Brussels produce one.

Henry VIII powers

It is right to point out that all these draft enabling provisions come with certain conditions and restrictions, including "sunset" time limits: two years for Clauses 7 and 8 and an exit day cut-off for Clause 9. But they also have an important element in common that makes Ministers' new powers unusually expansive: an apparently open-ended entitlement to "make any provision that could be made by an Act of Parliament". An Act of Parliament can, of course, amend, repeal or do pretty much anything else to another Act of Parliament. And as the Government's accompanying Delegated Powers Memorandum concedes, these powers extend not just to statutes which themselves transpose EU obligations and so contain "retained EU law", but to any Act of Parliament.

Now the Government might point out in its defence that the broad formula "any provision that could be made by an Act of Parliament" is simply borrowed, nearly verbatim, from the European Communities Act 1972, which the Withdrawal Bill replaces on exit day. Section 2(2) of the ECA enables binding but non-directly effective EU instruments - principally Directives - to be transposed into UK law by regulations. By s. 2(4), those regulations may include "any such provision (of any such extent) as might be made by Act of Parliament". Thousands of regulations have been made under ECA s. 2(2), and likely hundreds of them have amended or repealed Acts of Parliament. But to rely on the superficial textual similarity between the ECA and Withdrawal Bill provisions is to gloss over a major difference of substance.

S.2(2) & EU Legislation

Where a Directive is transposed using the ECA s. 2(2) power, underlying the exercise of that power is the elaborate legislative process at EU level that precedes adoption of the Directive. I had the honour of contributing to the Bar Council's evidence to the House of Lords Constitution Committee's recent examination of delegated legislation issues in the context of Brexit. As we pointed out:

"[The EU legislative] process invariably involves two or more rounds of public consultation by the Commission before a proposal is formally put to the bipartite EU legislature (the Council and Parliament); detailed scrutiny and amendment by the Parliament (acting through its appropriate Committee and in plenary session); and, more often than not, a degree of scrutiny by national legislatures. In the latter respect, the work of the Lords EU Select Committee and its Sub-Committees sets a high standard among the Member States. At each stage, stakeholder and public involvement helps shape the legislation as it makes its journey towards adoption."

It is that transparent and participatory process that lends legitimacy to the use of the s. 2(2) power, and in particular the Henry VIII element of the power, despite the extremely abbreviated opportunity for Parliamentary scrutiny that even the affirmative procedure on ECA regulations affords. But regulations under Clauses 7, 8 and 9 of the Withdrawal Bill involve no such process. They are simply the result of a Ministerial view of what change to the law it would be expedient to make in the wake of Brexit. As the Bar Council commented:

"It would be a matter of great constitutional concern if the [Withdrawal] Bill were to contemplate the possibility that repeal, or other significant change to the substantive content, of law currently deriving from EU Directives could be effected by a process similar to the making of ECA s. 2(2) instruments. Such a process would bring about a significant democratic deficit which would undermine the legitimacy of resulting legislation. It is one thing to use a secondary instrument to implement legislation that has been the subject of an extensive legislative process at European level. It is another thing entirely to use that process to implement policy which simply emerges from ministerial decisionmaking within the confines of Whitehall departments or Cabinet committees."

The Committee agreed, and the case made by the Bar Council - among others - persuaded it that any new law-making powers granted to Ministers in the context of Brexit should be carefully defined and subject to "enhanced scrutiny" arrangements going beyond the existing affirmative resolution procedure on draft instruments.

Whose Supremacy?

The generous Henry VIII power in ECA s. 2(2) additionally rests on the principle of supremacy of EU law, a principle fundamental to the EU legal order. So long as the UK remains an EU Member State, our own legal system too must embrace that principle. So it is understandable that ECA regulations implementing EU law even though they are they are a form of subordinate legislation in our domestic system might need to alter or delete chunks of inconsistent primary legislation. But the Withdrawal Bill, by some rather impenetrable drafting in Clause 5 and Schedule 1, abolishes the supremacy of EU law, at any rate in relation to most post-exit legislation. The Government no doubt views that as part of its commitment to return sovereignty from the EU to our own Parliament. But the result of copying the Henry VIII power from the ECA into Clauses 7, 8 and 9, is that Parliament is effectively being asked to recognise a new principle of the supremacy of Ministerial say-so. That turns the concept of Parliamentary sovereignty on its head.

A Power Grab?

The limits placed by the Withdrawal Bill on Ministers' planned regulationmaking powers fall well short of what the Constitution Committee evidently had in mind. Nor does the Bill contain any provision for enhanced forms of Parliamentary scrutiny. This lack of substantive and procedural safeguards, combined with the apparent width of the Bill's Henry VIII provisions, gives real cause for concern.

The Withdrawal Bill has been described, among other things, as a Ministerial "power grab". That may or may not be a fair assessment overall. But what is clear is that the regulation-making provisions in their present form raise serious questions about the legitimacy of Ministers' proposed legislative powers. This will be a key issue for both Houses of Parliament as they begin their examination of the Bill this autumn.