Sunday, 13 August 2017

EU (Withdrawal) Bill - Henry VIII at his best - Ministerial powers to legislate

Henry VIII

The European Union (Withdrawal) Bill, as presented to Parliament on 13th July, sets out to (a) repeal the European Communities Act 1972 on "exit day", (b) preserve legal continuity (but with notable changes) and (c) to define various forms of "retained" law and to specify how such law is to be interpreted.

Clauses 7 to 9 - "Main powers in connection with withdrawal" and Clauses 10 and 11 (Devolution) - are the subjects of this post.

Clause 7 is about legislation to deal with "Deficiencies arising from withdrawal".  Clause 8 is about legislation to comply with international obligations and Clause 9 is Implementation of the Withdrawal Agreement.   The late (despotic) Tudor Monarch - Henry VIII (1491 to 1547) - would have been proud of those clauses which enable secondary legislation to do anything that could be done by Act of Parliament.  The Delegated Powers Memorandum lists 14 separate powers in the Bill.


Clauses 10 and 11 are concerned with the powers of the devolved assemblies / administrations and here there may be trouble ahead because the Scottish and Welsh Governments have said that they cannot recommend that legislative consent is given to the Bill as it currently stand.

Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - Interpretation and Francovich

Secondary (or delegated) Legislation:

It is common enough for an Act of Parliament to grant to Ministers the power to bring forward what is referred to as secondary legislation.   (Other terms used are Delegated or Subordinate legislation).  For example, an Act may set out a framework of law which will apply to a specific area and leave it to Ministers to fill in the detail by using secondary legislation.  Such secondary legislation must keep within the powers given to the Minister by the enabling Act.  Also, if the enabling Act is repealed, secondary legislation made under the Act will cease to have effect unless it is specifically saved.

So-called "Henry VIII clauses" are sometimes inserted into enabling Acts.  These grant powers to use secondary legislation to do anything that may be done by Act of Parliament.  A good example is Clause 7(4) -  "Regulations under this section may make any provision that could be made by an Act of Parliament."

Parliamentary Controls:

Secondary legislation is subject to various types of parliamentary controls which must be applied for it to become law.  The specific controls applicable in a particular situation are to be found in the enabling Act of Parliament. See Parliament - Delegated Legislation.

Clause 7- Deficiencies:

Powers are granted to make secondary legislation to deal with deficiencies arising from withdrawal from the EU.  See the Explanatory Notes for Clause 7.   Clause 7 gives ministers of the Crown a power to make secondary legislation to deal with problems that would arise on exit in retained EU law. This includes the law which is preserved and converted by clauses 2 to 5 (i.e. both domestic law and directly applicable EU law). These problems, or deficiencies, must arise from the UK’s withdrawal from the EU (which includes the consequence that the UK will cease to participate in the EEA Agreement).

Clause 7(1) of the EU (Withdrawal) Bill states: "A Minister of the Crown may by regulations make such provision as the Minister considers appropriate 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 withdrawal of the United Kingdom from the EU."

Clause 7(2) - explains the sorts of deficiencies that the power might need to deal with.  Seven categories (a) to (g) are set out.  The list is not exhaustive.  The list covers provisions:
  • that have no practical application after the UK has left the EU;  
  • provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency; 
  • provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate;
  • any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate; 
  • EU references that are no longer appropriate. 
Subsection (2) also provides that if a function or restriction is contained in a directive and therefore not retained, and has not been transposed into domestic law, this can be a deficiency. 

There are illustrative examples of possible deficiencies and corrections in the Government White Paper Legislating for the United Kingdom’s Withdrawal from the European Union (pages 20 - 21) and a further example in the policy background section of these notes.

Clause 7(3) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient. 

Clause 7(4) is the Henry VIII provision - "Regulations under this section may make any provision that could be made by an Act of Parliament."

Clause 7(5) states some things that Regulations may do - e.g. provide that a function carried out by an entity of the EU is to be exercisable by a public authority in the UK and some authorities may have to be created for this reason.  However, Clause 7(6) imposes some restrictions - "But regulations under this section may not -(a) impose or increase taxation, (b) make retrospective provision, (c) create a relevant criminal offence, (d) be made to implement the withdrawal agreement, (e) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or (f) amend or repeal the Northern Ireland Act 1998 ....."

The power in Clause 7(1) is subject to a "sunset clause" at Clause 7(7) - "No regulations may be made under this section after the end of the period of two years beginning with exit day."

Parliamentary controls for Clause 7 are set out in Part 1 of Schedule 7.  Certain Regulations (set out in paragraph 2 of Part1) will be subject to Affirmative Resolution Procedure - e.g. if the regulation creates a public authority in the UK.  Other Regulations will be subject to annulment in pursuance of a resolution of either House of Parliament.  Schedule 7 is lengthy and complicated and a full reading is important.

Clause 8 - International obligations:

This is concerned with UK compliance with international obligations.  Clause 8(1) enables a Minister of the Crown to make regulations containing such provision as the Minister considers appropriate to prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.  Clause 8(2) imposes some restrictions.  

Regulations may not - (a) make retrospective provision, (b) create a relevant criminal offence, (c) be made to implement the withdrawal agreement, or (d) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it.  Clause 8 regulations also have a sunset clause - No regulations may be made under this section after the end of the period of  two years beginning with exit day.

Clause 8(4) is a further "sunset clause" - "No regulations may be made under this section after the end of the period of two years beginning with exit day."

Parliamentary controls over Clause 8 powers are set out in Part 2 of Schedule 7

Explanatory Notes for Clause 8 are HERE

Clause 9 - Implementing the withdrawal agreement:

Reaching a Withdrawal Agreement is the object of negotiations currently underway between the UK government and the EU.  Article 50 TEU is about the process of trying to reach such an agreement.

Clause 9 enables Ministers to make regulations for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.  

Clause 9(2) is the ultimate form of Henry VIII clause - Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

Regulations under this section may not (a) impose or increase taxation, (b) make retrospective provision, (c) create a relevant criminal offence, or (d) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it.

No regulations may be made under this section after exit day.

Parliamentary controls over Clause 9 regulations are set out in Schedule 7 Part 2 - where 7 situations requiring affirmative resolution are set out and these include amending the EU (Withdrawal) Act itself.

Explanatory Notes for Clause 9 are HERE.
 
Clauses 10 and 11 - Devolution:

These clauses are related to the powers of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly.    Devolution - Clause 10 Corresponding powers involving devolved authorities and Clause 11 Retaining EU restrictions in devolution legislation etc.

Clause 10 states that - Schedule 2 (which confers powers to make regulations involving devolved
authorities which correspond to the powers conferred by sections 7 to 9) has effect.  Thus, as detailed in Schedule 2, devolved authorities can exercise the power to deal with deficiencies arising from withdrawal, the power to comply with international obligations and the power to implement the withdrawal agreement. 

Clause 11 - see Explanatory Notes.  Clause 11 amends Scotland Act 1998 section 29; Government of Wales Act 2006 section 108A and Northern Ireland Act 1998 section 6.

It will become outside the competence of the Scottish Parliament to modify retained EU law in a way which would not have been compatible with EU law immediately before exit. This legislative competence test is subject to any exceptions which may be prescribed by Order in Council.  Locking the powers of the devolved institutions to retained EU law may prove to be a difficult political problem since it may prevent Scotland from being able to keep in line with changes to EU law as they occur post Brexit.

Equivalent provision will apply in Wales and Northern Ireland.  
 
Clause 11(4) provides for Part 1 of Schedule 3 to have effect, which establishes the new test for executive competence.  Clause 11(5) provides for Part 2 of Schedule 3 to have effect, which makes other amendments to the devolution legislation.

See the Comments by the Law Society of Scotland and the Joint Statement by the First Ministers of Scotland and Wales.   The latter comments that the Bill is - "a naked power-grab" attacking the founding principles of devolution.  Furthermore - "The European Union (Withdrawal) Bill does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK Government and Parliament, and imposes new restrictions on the Scottish Parliament and National Assembly for Wales.  On that basis, the Scottish and Welsh Governments cannot recommend that legislative consent is given to the Bill as it currently stands."

For further discussion see Professor Mark Elliott - A "blatant power grab"?  The Scottish Government on the European Union (Withdrawal) Bill - 10th August 2017.

Reading:

Parliament - Delegated Powers Memorandum

Ian Dunt, in Politics.co.uk, Small print of repeal bill creates unprecedented new powers for Brexit ministers - "On the face of it, the repeal bill addresses many of the concerns of its critics. But once you dig in a little further, the full scale of the executive power grab becomes clear. There has never been a piece of legislation like this in modern British history. We have never handed the government so much power."

Paul Daly - Administrative Law Matters blog - Procedural problems with the EU (Withdrawal) Bill

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