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 Also, if the enabling Act is repealed, secondary legislation made under the Act will cease to have effect unless it is specifically saved.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."
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."
- 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.
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:
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."
No regulations may be made under this section after exit day.
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.
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.
For further discussion see Professor Mark Elliott - A "blatant power grab"? The Scottish Government on the European Union (Withdrawal) Bill - 10th August 2017.
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