Legislation to enable the UK’s withdrawal from the EU must not be used to introduce radical changes in domestic law without parliamentary scrutiny, an influential House of Lords committee warns today.
In highly unusual scrutiny of a bill that has yet to be published, the constitutional committee warns against the temptation to make use of delegated powers in the promised Great Repeal Bill to amend the law in areas currently governed by the EU when competence is transferred. The bill will repeal the European Communities Act 1972 and convert the ‘acquis’ body of European Union law into domestic legislation.
The measure is distinct from the legislation currently going through parliament to authorise the triggering of article 50 of the Treaty of the European Union.
The committee, whose members include crossbencher Lord Pannick (David Pannick QC), notes that the process of concerting the acquis will fall in to two phases.
The first is the ‘mechanical’ preservation of EU law by converting it into UK law with such amendments as are necessary to make it work sensibly in a UK context; the second, a longer-term ‘discretionary process’ in which parliament and the government determine the extent to which EU law will remain part of UK law.
‘It is vital that a distinction be drawn between these two discrete processes,’ the committee warns. While the Great Repeal Bill is intended to facilitate the first aspect of the process, the second should be achieved through normal parliamentary procedures. In particular the government should resist the temptation to take shortcuts by the use of secondary legislation, or by inserting so-called Henry VIII clauses allowing primary legislation to be amended.
It predicts that, given the deadlines imposed by the timing of Brexit, the bill is likely to include wide-ranging delegated powers. ‘These will permit the government to make a broad range of changes via secondary legislation to the body of EU law in preparation for its conversion into UK law. These powers will be required both because of the sheer number of changes required and the uncertainty as to what exactly the process of converting EU law into UK law will eventually entail.
‘The government will also need to be able to amend that law at short notice to take account of the outcome of Brexit negotiations.’
The committee argues that parliament should seek to limit the scope of the delegated powers contained in the bill, so that they can be used only so far as necessary to adapt the body of EU law and so far as necessary to implement the result of the UK’s negotiations with the EU.
The committee also recommends that scrutiny processes should be created for secondary legislation laid under the bill. These would require a minister to sign a declaration in respect of each statutory instrument affirming that it does no more than necessary to translate EU law into UK law.
Committee chair Lord Lang, the Conservative former cabinet minister Ian Lang, said: ‘The Great Repeal Bill is likely to be an extremely complicated piece of legislation. The intention should be to convert the existing body of EU law into UK law with as few changes as possible. The government may need to be granted wide-ranging powers to accomplish that task.
‘Those powers should not, however, be used to pick and choose which elements of EU law to keep or replace – that should be done only through primary legislation that is subject to proper parliamentary scrutiny.’