CONSTITUTIONAL effects of the European Union Withdrawal Bill

On July 13, an extremely important piece of legislation was introduced in the United Kingdom’s House of Commons. Perhaps, the most significant in the last four decades.

The EU Withdrawal Bill (popularly referred to as “The Great Repeal Bill”) had been anxiously awaited ever since last year’s Brexit referendum as a way to “claim back sovereignty”.

But, does it actually do that?

Three main objectives of the bill

1. It will repeal the European Communities Act 1972, which was enacted to make EU law part and parcel of domestic law in the UK

2. It will convert all existing EU law into UK law.

3. It will give ministers powers of delegated legislation to amend, modify or repeal “retained EU laws” (meaning, EU laws that have been converted into national laws by the bill)

The EU Withdrawal Bill is long and complex, as is to be expected. Just imagine a union that has lasted more than 40 years, and the voluminous amount of legislation it would have produced.

The UK cannot possibly withdraw from the EU and pull away four decades of legislation from under the feet of its citizens just like that.

That would have left them in a vacuum, a legal black hole. Hence, this bill is both desirable and necessary for a smooth exit from the EU.

A messy divorce

However, just like in a divorce, separation and the aftermath can be messy, as can be seen with this bill. Though it clarifies what it aims to do in the above three areas, there is confusion and unrest, too, for it gives rise to several legal and political controversies.

There are also significant constitutional repercussions that arise.

Parliamentary supremacy and the dangers of delegated legislation

The first concern that comes to mind is that of parliamentary supremacy, a principle at the heart of the British Constitution, which states that Parliament makes the law and the Executive implements it, in line with government policy and administration. But of course, in reality, there is delegated legislation, whereby Parliament delegates the task of making secondary legislation to the Executive.

So, conferring delegated powers is not, on its own, anything to shout about. It is neither unique nor revolutionary. Right? Wrong.

Henry VIIIth clauses

What is startlingly different about this is bill is the kind of delegated powers it confers on ministers. They are of a sweeping kind that can be used to “make any provision that could be made by an act of Parliament”.

This amounts to a Henry VIIIth clause, which allows ministers to not only amend or repeal retained EU laws, but also amend or repeal other acts of Parliament). Surely this is a dangerous invasion of the doctrines of separation of powers and parliamentary supremacy?

Well, it may not be if there are sufficient checks and balances, and adequate scrutiny by Parliament.

Inadequate safeguards and restrictions

So, what are the safeguards? Apparently, there are some restrictions. Ministers can only use this power if they feel it is appropriate to make EU law “operate effectively” or to address some other “deficiency” in EU law.

However, the exact meaning of “failure to operate effectively” is neither defined nor clarified in the bill. The worrying thing is that these powers are framed in a very broad manner.

Although there is a two-year sunset clause operating on them (meaning, the power to make delegated legislation expire two years after Exit Day), there are very few other limitations imposed on them. Even Exit Day is not fixed by the bill, but is to be designated by ministerial order.

What about parliamentary scrutiny into these delegated powers? Does it exist? The answer is, it does, but it is skimpy and inadequate at best.

The last time the House of Commons rejected a statutory instrument (the most common form of delegated legislation) was in 1979! Most of the time, they go through Parliament unchallenged.

Negative and affirmative parliamentary procedures: do they really work?

To put it simply, there are two main forms of parliamentary scrutiny into delegated legislation: the negative procedure and the affirmative procedure.

The negative procedure means that regulations take effect until either the House of Commons or the House of Lords passes a resolution annulling them. It is worth noticing that such annulments are very rare indeed.

Some regulations will be subjected to the affirmative procedure, which means that they only enter into force if approved by both houses. However there is a problem: the category of regulations that fall under the affirmative procedure is, unfortunately, very narrow.

This is worrying as it means that there is a high chance that significant policy choices that will have a big impact on people’s lives will not be subjected to adequate scrutiny. The effect of this, as constitutional commentator Mark Elliott argues, is that “there will be a huge transfer of power from Parliament to the Executive”.

The government may say this is inevitable to reduce the delay in implementing EU laws, but the negative impact of the lack of scrutiny raises grave constitutional concerns.

Impact on devolution and power-sharing arrangements with Scotland, Wales and Northern Ireland

Another constitutional issue is one that relates to devolution to Scotland, Wales and Northern Ireland. Currently, these devolved legislatures are acting on a power-sharing basis with Westminster Parliament.

Under existing arrangements, they are not allowed to enact legislation that breaches EU law. However, once the UK leaves the EU, this restriction will no longer matter, and they may argue that they are free to enact laws on devolved matters however they want.

But, the bill tells them they cannot do this, as it states that repatriated powers, even if they concern devolved subject matters, fall under the authority of Westminster Parliament. The Scots and the Welsh may try to rely on the Sewel Convention to argue that a legislative consent motion is required in such a situation, but the recent Supreme Court decision of Miller v SOS for Exiting the EU (2017) UKSC 5 clearly tells us that the Sewel Convention is just that – a convention, and not law. It is a political rule, and not a legal rule.

The courts may recognise the existence and the constitutional importance of such a convention, but they will not enforce it. Hence, at the end of the day, one may conclude from the Miller decision that the UK Parliament is, indeed, sovereign.

The EU Withdrawal Bill may be seen to be a logical consequence of the Miller decision as it empowers only the UK Parliament to repeal the European Communities Act 1972. And if Scotland, Wales and Northern Ireland refuse to consent to this, does it matter? Does this affect Parliament’s ability to legislate in any way? The answer is: no, it does not.

From a strictly legal standpoint, there would be no legislative limitation. From a political perspective, however, the devolved nations may put up a struggle and show resistance, which may slow down the passage of the bill in the House of Commons.

It also has a dangerous potential to destabilise the union and relationship between the four nations of the UK.

The future of the British Constitution: certainty or confusion?

Theresa May argues that the bill gives certainty to the UK. But, does it really?

It sounds good that “sovereignty is restored”. But, is that true or is it merely political rhetoric?

Brexit negotiators have just begun the long, messy process of settlement, and issues concerning citizens’ rights, residency rights, the Irish border, migration and UK financial liabilities, just to name a few, are far from clear. There are many points of difference and common ground to be reached. The waters are murky at best.

The scale of the operations and negotiations is enormous, and the number and volume of decisions that need to be taken as EU law is converted into UK law is vast and mind-boggling. At present, both parties do not even know what sort of withdrawal or agreement is coming their way. There is much confusion and lack of clarity.

Throughout this messy separation, one can see the flexibility, strength and resilience of the UK Constitution. The bill’s main objective is to make sure that there is legal certainty and continuity after Brexit.

However, there will undoubtedly be compromises and concessions along the way, and it will be interesting to see how the British Constitution adapts to these changes, as it undoubtedly will, in the long run.

* Meera Badmanaban is a senior lecturer in constitutional law

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.