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Peers renew concerns over EU Withdrawal Bill ahead of second reading

7 September 2017

Renewed concerns at the scope of ministerial powers in the European Union (Withdrawal) Bill, and the lack of provision for scrutiny of their exercise, have been expressed by the House of Lords Constitution Committee in a report published today, coinciding with the House of Commons second reading debate on the bill.

"It is difficult to think of areas of constitutional concern that are not deeply engaged by the bill", the peers state. They concentrate on three broad constitutional themes: the relationship between Parliament and the executive, the rule of law and legal certainty, and the stability of the UK’s territorial constitution.

"The executive powers conferred by the bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between Parliament and Government", the report concludes. "It is not merely that the bill invests the executive with deep legislative competence by authorising the making of 'any provision that could be made by an Act of Parliament,' it is that the bill contains multiple such powers, which overlap to a very considerable extent, and which are not subject to an enhanced scrutiny process as we recommended in our previous report.

"In this way, the bill weaves a tapestry of delegated powers that are breathtaking in terms of both their scope and potency."

They add that the "multiple uncertainties and ambiguities" in the bill raise "fundamental concerns" from a rule of law perspective. "Whenever a bill is unclear, rule of law concerns arise. But such concerns are especially troubling in relation to a constitutional bill such as this... Individuals, organisations and the Government need to know what exactly the law is, and what their rights and responsibilities are, post exit, without having to resort to litigation."

As regards the stability of the UK, departure from the EU will have "profound consequences" for the devolution settlements within the UK. "The ambiguities and uncertainties in the bill extend to issues of devolved competence and this has implications for the balance of the power within the Union and the future of the devolution settlements."

The peers summarise: "Overall, we conclude that the bill is highly complex and convoluted in its drafting and structure. This is not to deny that it must inevitably grapple with a set of difficult legal issues. But it is a source of considerable regret that the bill is drafted in a way that renders scrutiny very difficult, and that multiple and fundamental constitutional questions are left unanswered. We will consider all of these issues in greater detail in our forthcoming inquiry on the bill."

Click here to view the report.

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