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Lords committee calls for amendments as Brexit Bill comes before House

29 January 2018

The EU (Withdrawal) Bill needs substantial changes to make it "constitutionally appropriate", a House of Lords committee reported today ahead of the bill's second reading in the Upper House of Parliament.

The Constitution Committee’s report does not comment on the merits of Brexit, but concludes that the bill, as drafted, has fundamental flaws of a constitutional nature. It finds that the bill risks undermining the legal certainty it seeks to provide, gives overly broad powers to ministers, and has significant consequences for the relationship between the UK Government and the devolved administrations.

It proposes a number of recommendations to improve the bill to make it more constitutionally appropriate and fit for purpose, while still meeting the Government’s objectives.

Among its criticisms are:

  • It is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as "retained EU law" by clause 2 and subject to the powers of amendment in clause 7.
  • The ambiguities in the interpretation and effect of clause 4 (directly effective treaty provisions) will inevitably cause legal uncertainty about a fundamental provision of the bill. This will undermine one of the Government’s main objectives in bringing forward the bill.
  • As drafted, the bill gives rise to profound ambiguities about the legal status of retained direct EU law. It should have the status for all purposes of direct primary legislation. That would mean that only Henry VIII powers can be used to amend it by subordinate legislation.
  • It is constitutionally unacceptable for the bill to be ambiguous as to what retained EU law the "supremacy principle" of EU law will apply, and the notion of maintaining the principle following exit amounts to a fundamental flaw at the heart of the bill.
  • There is no reason to make special provision in the bill for the Charter of Fundamental Rights.
  • Cases pending before the CJEU should be dealt with in the bill.
  • The power of ministers to do what they consider "appropriate" is subjective and inappropriately wide. The bill should be amended, so that when ministers consider it "appropriate", they must demonstrate that there are "good reasons" for its use and that the use of the power is a "reasonable course of action".
  • The bill as drafted proposes scrutiny measures that are inadequate to meet the unique challenge of considering the secondary legislation that the Government will introduce once the bill is passed. Enhanced scrutiny will be essential.
  • The constitutional consequences of proceeding with the bill without legislative consent from the devolved legislatures would be significant and potentially damaging, both to the UK’s withdrawal from the EU and to the union of the United Kingdom. It is imperative that the Government brings forward amendments to clause 11 and works through the Joint Ministerial Committee to ensure an agreed approach to the return of competences from Brussels and pan-UK agreement on common frameworks. 
  • The implications of the UK’s departure from the EU for Northern Ireland, given their complexity and sensitivity, require special and urgent consideration by the Government.

Committee chair Baroness Taylor of Bolton commented: "We acknowledge the scale, challenge and unprecedented nature of the task of converting existing EU law into UK law, but as it stands this bill is constitutionally unacceptable. In our two previous reports we highlighted the issues this raised and we are disappointed that the Government has not acted on a number of our recommendations.

"However, we identify a number of practical ways in which the flaws in the bill can be addressed in line with existing constitutional principles and without compromising the Government’s aims. We look forward to constructive engagement with the Government on our recommendations."

Click here to view the full report.

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