Pr McEldowney : Le principe de rule of law et la législation déléguée dans le cadre du EUWB

Le Pr Thomas Perroud a organisé le 12 février dernier dans laquelle s’exprimait le Pr John McEldowney, professeur à l’Université de Warwick. Il est revenu à cette occasion sur le défi que constitue le EU (Withdrawal) Bill pour le principe de rule of law et le rôle déterminant du Parlement. Les lecteurs trouveront ci-dessous le texte de son intervention ainsi que le Power Point qui éclaire pédagogiquement la procédure et les problématiques en cause. Nous remercions le Pr McEldowney d’avoir transmis à l’Observatoire ces documents.

Brexit – The UK Withdrawal Bill: The Rule of Law and Delegated Legislation: Parliament under scrutiny

 by Professor John McEldowney, School of Law, University of Warwick.

“Thus our [UK] constitutional settlement has become unbalanced, and the power to restrain legislation favoured by a clear majority of the House of Commons has become much weakened, even if exceptionally, such legislation were to infringe the rule of law as I have defined it. This calls for consideration as a serious problem”. Lord Bingham, The Rule of Law, London: Allen Lane, Penguin, 2010 p.169.

Introduction

On 23rd June 2016 a UK referendum to leave the EU resulted in a turnout of 72.2%, 51.9% voted to leave while 48.1% voted to remain. The referendum had immediate consequences. The Prime Minister resigned, having failed to secure a “remain” vote, and the UK began an uncertain journey towards leaving the EU. A new leader of the Conservative Party was elected and became Prime Minister and the Government notified the European Council on 29th March 2017 of the UK’s intention to withdraw from the EU on 29th March 2017. It is expected that the UK will leave the EU after 29th March 2019 with ensuing constitutional implications, not least of which is the legislative arrangements required for the UK to leave. The exact form of the UK’s post-Brexit arrangements with the EU are uncertain, leaving many to conjecture about the future with fiercely divergent opinions as to the economic consequences of leaving[1]. It is less controversial to write that the UK’s party politics will never be the same again. Quite possibly neither will the UK’s constitutional arrangements, over matters raised by Brexit such as devolution (Scotland, Wales and N. Ireland), human rights and the approaches taken by the UK’s Supreme Court when interpreting legislation and the role of Parliament in this period of intense change. The Miller[2] decision, made by the Supreme Court, in January 2017, when the court was asked to consider the government’s claim to make use of the prerogative power to amend treaties as the basis of its legal authority to leave the EU by triggering Article 50 is significant. The Supreme Court, by a majority of 8 to 3, insisted that an Act of Parliament was required to trigger Brexit and reaffirmed the well- established doctrine of the sovereignty of Parliament[3]. The majority decision in Miller rested on the proposition that the UK Parliament is both a constitutional authority as well as a creator of legal norms and devices defining its own authority[4]. It remains to be seen how Parliament will define its own future, although it has a unique potential to do so. Related, but as important, is the question of how effective Parliament will be in its role of scrutiny in the specific challenge posed by delegated powers that are part of the EU Withdrawal Bill 2017. The extensive use of delegated powers is one of the hallmarks of the Bill and deserves closer attention[5].

  Parliament’s powers of legislative scrutiny face an unprecedented set of challenges, including a tight deadline for detailed and necessary withdrawal legislation to be passed in time for Brexit day in March 2019. The EU Withdrawal Bill has to be debated amongst normal parliamentary business. In addition there are another seven Bills to ensure that Brexit is legally consistent with the continued maintenance of UK laws and legal responsibilities.

The main focus of this paper is on rule of law considerations relevant to the procedures and oversight of delegated legislation[6] under the EU Withdrawal Bill. The rule of law provides expectations for consultation, principles of reasonableness, fairness and proportionality in the application of powers exercised by the Executive and the role that Parliament is expected to perform when exercising its important task of scrutiny. The scrutiny of primary legislation is regularly given due debate and consideration, including three readings in each House of Parliament.  As a general rule delegated or subordinate legislation is subject to less scrutiny than primary legislation such as an Act of Parliament. This casts an important question over the working of the UK’s constitutional arrangements, long admired for its qualities of compromise and political debate, now exposed to unprecedented questions about its willingness to address Brexit. At the same time at issue is Parliament’s ability to keep pace with Brexit developments while maintaining its sovereignty and possibly after leaving the EU ensuring to its historical constitutional role of questioning the executive and upholding the rule of law.[7] This is a case study of how constitutional change and Parliamentary processes at work in the UK are under immense pressure during a period of unprecedented political and legal uncertainty. The final outcome is far from certain.

Constitutional Challenges posed by Delegated legislation and the European Union (Withdrawal) Bill 2017

The use of subordinate or delegated legislation is not in itself novel or unusual. Subordinate law making powers are part of the routine of how government functions, are found in the regular conduct of government business and are legally accepted in primary legislation. In modern times their routine use has encouraged Parliament to exercise oversight through the use of the Joint Committee on Statutory Instruments and the House of Lords Secondary Legislation Scrutiny Committee. However, in reality, as mentioned already, oversight is often too cursory partly because of the technical nature of many delegated powers that leaves scrutiny limited and constrained by a relatively narrow focus. This is understandable as technical issues rarely alter policy or raise fundamental constitutional problems. The reality is that most MPs have to pick the areas on which to raise objection or exert influence, as parliamentary time is limited. Political debate in the House of Commons is often constrained by the politics of the day and the interests or expertise of MPs which may not extend to the technical detail of delegated instruments in the Bill. While the benefits of scrutiny are limited, their constitutional role and importance should not be downplayed.

 Statutory instruments are usually at the initiative of the government of the day. Surprisingly there appear to be few constitutional principles or guidance as to what should be included in primary legislation rather than addressed in subordinate legislation.  The few principles are largely unhelpful and confined to insisting that primary legislation is normally required to authorise public spending or taxation. Consequently, the Government has a broad and ill -defined discretion as to what to include in a statutory instrument. The benefits for government of using statutory instruments is that they are not subject to the same level of scrutiny or detailed consideration as primary legislation or Acts of Parliament. This makes them easier and quicker to pass, usually with no amendments. Only in rare circumstances will amendments be permitted under the enabling Act[8].

There is a further consideration namely the choice of procedure used. Statutory instruments are made in a variety of forms which may broadly fall into either negative or positive resolution. Negative resolutions become law unless there is an objection within forty days of its presentation. Positive resolution requires that the instruments are approved by both Houses of Parliament- in the case of financial instruments the Commons is the sole authority for such approval. All statutory instruments must be accompanied by Explanatory Notes as an aid to interpretation.

 It is clear that Brexit poses many challenges for the UK parliament. The European Union (Withdrawal) Bill 2017, published on 13th July 2017, containing the arrangements for leaving the EU is complex and heavily relies on the use of statutory instruments.  As the Bill is currently being debated in Parliament and is the subject of amendments, it is hard to be sure what will eventually be passed.  It is clear that the Government are unlikely fundamentally to change a major feature of the Bill, namely their reliance on delegated powers that will give unprecedented powers to ministers to amend or repeal various aspects of the statute book without detailed parliamentary scrutiny or accountability over how such delegated powers might be used.  The government’s case for the creation of a number of delegated powers is to enable changes to be made to allow the UK to leave the EU when the UK transfers into UK law all pre-existing EU law before Brexit is transferred into EU law. Delegated powers are necessary to accommodate changes that are hard to predict in advance, especially because of the uncertainty in the outcomes of the negotiations that have to be concluded before March 2019. As the Bill repeals the European Communities Act 1972 it will remove the competence of European Union institutions to legislate for the UK.  The Bill extinguishes the application of the EU Treaties to the UK. The aim of the Bill is to transfer the entire body of EU law, known as retained EU law, onto the UK’s statute book in anticipation of Brexit day. This is an ambitious aim. The details of any settlement have yet to be agreed and the extent of the need for delegated powers in the future unclear. As mentioned above, the Government notified the European Council on 29th March 2017 of the UK’s intention to withdraw from the EU on 29th March 2017. It is expected that the UK will leave the EU after 20th March 2019, but this date is by no means certain as negotiations are ongoing. It is even possible for there to be more than one exit day for different sectors and there is discussion of negotiating a two year transition period. There are over 7,000 instruments forming EU legislation- a sign of the magnitude of the task in hand. The extent of the challenges facing the UK are that it is not easy to know the exact scope of EU law and there are, in fact, fourteen clauses in the bill with defined delegated powers granted to Ministers. A further cause for uncertainty and additional complexity is the Government has also a stated aim to remove the CJEU from the UK.  This is likely to be problematical, leaving questions about the adequacy of enforcement arrangements in the UK. A further concern is that Schedule 8 para 3 of the Bill provides that existing statutory powers will be able to amend retained direct EU legislation.

 Such an amendment power is likely to be problematical and politically difficult, as leaving the EU raises questions about the adequacy of enforcement arrangements in the UK. The Government’s proposals have constitutional significance, particularly for the application of rule of law principles. The concerns raised by the passage of the Withdrawal Bill are in the context of the need for speed and flexibility to meet a tight deadline of exit day and yet to provide adequate time in which to approve statutory instruments.

The breadth and range of powers that are to be found in the Bill for ministers is also a cause for concern together with the number of statutory instruments expected to be required. Two matters arise such as when the powers will be used and what the powers will be used for[9]. The government has estimated that up to 1,000 statutory instruments might be needed for this Bill alone. Sensitivities to the challenge posed by statutory instruments arise over the UK’s unwritten constitution vulnerability to the accretion of powers to the executive at the expense of Parliamentary oversight. Even if it is accepted that such powers are necessary and proportionate, it is essential that there are adequate systems of checks on their use and application. There are broader constitutional implications in terms of setting out boundaries for the use of executive powers in a Parliamentary democracy. How might such boundaries be set and how best to ensure a public debate about the public interest and how it is best protected?  In strict constitutional law the status of the Bill is no different to any other statute, but the implications of the Bill for the UK are far reaching and will determine a major part of the UK’s substantive law for many years to come.

As the matters raised by the Bill are constitutionally significant, it is important that this significance is considered in the debates and safeguards in the Bill. Normally pragmatic and flexible, the UK’s unwritten constitutional arrangements are often left vague and ambiguous, facilitating unforeseen changes. In its long constitutional tradition there are many “self- governing” principles that have co-existed with the growth in the use of legislation that empowers the Executive. The essence of the self-governing nature of such obligations is not that they are always observable or enforceable in the legal sense of being applied by courts. In the general approach to governance, their observance is a mark of good administration and due process. In wishful thinking they might be regarded as matters of constitutional propriety[10]. In terms of reform agendas they might be elevated to a written constitution or enshrined in a Bill of Rights. Reformers might argue that the nature of any coercive state is one that needs to be held in check[11].   Rules or principles include various constitutional norms such as avoiding retrospective legislation[12],or that retrospective legislation should be narrowly defined[13] and that laws should not retrospectively interfere with obligations when the liberty or criminal liability of the citizen is at stake.[14] Related issues of certainty and accessibility of laws are also important. Specifically in the area of delegated legislation, it is clear that delegated legislation is amenable to judicial review but this is of limited utility in ensuring scrutiny and is largely ex post rather than ex ante.[15]

Rule of Law Considerations and Delegated Legislation

Delegated legislation[16] has been the subject of various reports and inquiries, most notably the Renton Inquiry in 1975[17], the Hansard Commission Chaired by Lord Rippon in 1993[18] and in 2015 a Hansard Report.[19] In December 2015 Lord Strathclyde conducted a review specifically directed to the role of the House of Lords and the primacy of the House of Commons[20] in delegated legislation. Underpinning these reports were assumptions that delegated powers were limited in scale when natters of policy were concerned and were often confined to technical details.

 In addition to the overall review of delegated powers there are, emerging from previous House of Lords Select Committee Reports, a number of principles or standards that relate to safeguards for the operation of the delegation of legislative powers[21]. Such standards have a strong resonance with the rule of law principles. There are a number of underlying principles as follows:

  • Laws that contain delegated powers should strike a balance between the desire for effectiveness and the safeguards needed to ensure constitutional propriety;[22]
  • Constitutional safeguards should be added whenever possible” to a delegated ministerial legislative power without undermining the policy of a bill” and that such safeguards should be respected;[23]
  • Ministers should not be able to suspend legal powers by giving directions; instead orders, which are subject to parliamentary oversight should be used;[24]
  • Provision should be made for Parliament to be informed promptly of all ministerial exercise of legislative powers;[25]

It is estimated that since 1992 the number of delegated legislation SIS’s are on average about 3,000 per year. Only about 1,200 are submitted to parliamentary scrutiny. In the last 65 years just 16 SIS’s out of over 169,000 or 0.1 % have been rejected. The quality of consultation is variable as is the drafting and standard of Explanatory Memorandums[26].The main findings of the 2015 Hansard Society Report on Delegated Legislation[27], are that the way Parliament deals with delegated legislation is unsatisfactory. A major reason is that the scrutiny that there is, is not systematic or clear. Indeed the entire area leaves much to the random interventions and sporadic periods of activity followed by inaction. The Report concluded that the absence of “objective criteria” is apparent with many parliamentarians willingly admitting that they often do not understand the procedures which are “complex and often illogical”. The procedures are assigned to one of three forms of scrutiny[28] with at least 16 variations on the three procedures and at least 11 forms of strengthened procedure alone. It is clear that the choice of the most appropriate procedure for delegated powers is critical. There are two possibilities – negative or positive procedures. The negative procedure allows either House within 40 days passing a motion that the instrument may be annulled. The affirmative procedure allows an instrument to be laid before Parliament in draft and must be approved by both Houses. The Lords normally debate all affirmative instruments. In addition, there are various enhanced procedures that may allow the relevant select committee to scrutinise the instrument and under this arrangement there is a final version open for scrutiny. The “super affirmative “resolution was used for the Legislative and Regulatory Reform Act 2006. The benefits are that it allows public transparency and scrutiny, input from the valuable expertise in committees and an opportunity for the Government to amend or modify the proposed instrument. The approval of both Houses is also a feature allowing time for checking and analysis.

As noted above, the inadequacy of scrutiny arrangements for delegated legislation has been a long standing complaint. This has been partially considered through various forms of enhanced procedure that may allow the relevant select committee to scrutinise the instrument and under this arrangement there is a final version open for scrutiny.

The rule of law and the use of delegated powers under the EU Withdrawal Bill.

The Government indicated as early as October 2016[29] that it favoured a Bill with the sole purpose of transposing EU law into UK law and repeal the European Communities Act 1972. The latter has been acknowledged as a “constitutional statute” that is indicative of its special status and significance.[30]  If the same reasoning is to apply the EU Withdrawal Bill is likely to have a similar status. This provides a strong argument for the Bill to uphold rule of law principles. The Government has indicated that there are likely to be a further seven Bills, including Bills on Agriculture and Fisheries as well as a Bill that will include the result of the negotiations once they are concluded.  This places an incredibly tight time-table to have all the relevant Bills debated and passed into law.

The extent of the possible use of delegated powers under this Bill is hard to estimate as there are many unknowns[31] that makes assessment of the Bill as extremely difficult. These include making adjustments in the light of negotiations with the EU; making necessary changes to EU related legislation if it is at variance with the policy making of Government; ensuring that any transitional arrangements are in place. The case for an extensive use of delegated powers is largely a pragmatic and political one based on time-scales and a preference for the more simplified forms of scrutiny in contrast to the use of primary legislation. The practical case in favour of delegated powers is that the Government needs “wriggle room” to ensure that there is adequate legal coverage to deal with negotiations as matters proceed. There is also an implicit promise that the use of delegated powers will be confined to technical matters alone.

During the Summer of 2017, the Hansard Society undertook a further study of the prospects of extensive delegated legislation under the EU (Withdrawal Bill) 2017, which it published in September 2017[32]. The report makes clear that there is an unprecedented tight deadline for the legislation to be passed- by 29th March 2019, and the Bill has to make predictions for the unknown which has yet to be defined namely the nature of the transitional arrangements and the overall relationship between the UK and the EU. Their recommendations build on past thinking about how to make Parliament effective in terms of scrutiny. There is no agreed way on how to achieve this objective and it is certainly at the heart of the Government’s consideration of how best to enact the Withdrawal Bill.

There are a number of possible proposals for different forms of more intensive scrutiny. Parliament has already identified a process of strengthened scrutiny that would see a committee veto, a statutory three month consultation period, up to 70 days for scrutiny rather than the usual 40 days and a robust process of checking on the necessity and justification for each statutory instrument. This process is time-consuming and unpredictable – ill- suited to the demands placed on the Government’s time-table. EU membership is a complex and technical arrangement that engages with many regulatory bodies within the EU that will take considerable time to “ un-package”. There are many levels of complexity including the mode of drafting of EU regulations and Directives that is distinct from the English form of legislative drafting. Translating these into precise English language will be demanding especially with conceptual differences between legal systems[33].

Transposing EU law into UK law is not straightforward as many EU provisions have been amended and revised on a regular basis, keeping up to date will not be easy. The variety of EU agencies and organisations add further complexity especially when there are continuous and detailed interaction with EU institutions that shape and interpret the law.  The scale of the enterprise is unprecedented and setting a realistic time-table is difficult as unpredictable events may interpose. Making legislation continue to function is likely to be difficult until the final negotiations are concluded. There is no certainty that this will be achieved within the allotted two-year time-table. There is every expectation that there will have to be a transitional period of an undetermined duration. There is also the vexed question of how interpreting existing EU law under the European Court of Justice will continue to influence UK courts. In addition, there are many pieces of UK primary legislation that will need to be interpreted and adapted after Brexit. Maintaining EU obligations before and up to the departure Treaty is likely to take considerable effort. The best way forward is unclear but the most likely outcome will be some form of  Select Committee  with suitable sub-committees that  draw on the existing EU Committee. It is unclear whether such a committee will be bicameral with the House of Lords.

The use of Henry VIII powers

Henry VIII powers are so called because they give ministers powers to amend Bills after their passage through Parliament. The name comes from a period in English legal history when a statute in 1539 allowed the King to legislate through proclamation rather than an Act of Parliament. The use of such powers has been the subject of intensive discussion in the House of Lords Constitution Committee[34]. It is possible to identify some underlying principles in the past use of Henry VIII powers, raising significant issues about the rule of law. These include the following:

  • Ministers should provide Parliament with their justifications for proposing the delegation of legislative powers[35];
  • Widely–drawn delegations of legislative authority cannot be exclusively justified by the need for speed[36];
  • The justification for a Henry VIII power should refer to the specific purpose that it is designed to serve[37];
  • In the use of “ incidental and consequential “ Henry VIII powers in relation to constitutional legislation, the Government should provide a clear and detailed account to Parliament of how and why it intends to exercise that power[38].

The House of Lords Constitution Committee also suggested clear limits on the use of such powers again providing a means of upholding the rule of law.

  • Henry VIII clauses should be limited so that they cannot be used to alter constitutional arrangements[39];
  • Secondary legislation is not the appropriate way to proceed with significant constitutional change[40];
  • Henry VIII powers that relate to a constitutionally sensitive subject-matter should use a super-affirmative parliamentary procedure.[41]

The EU Withdrawal Bill provides for the express grant of Henry VIII powers in clause 7. The powers are very widely drafted and include the power to amend primary legislation to deal with “deficiencies” in UK law that may arise from retained EU law. The absence of a clear definition of what is “retained EU law” is troubling when the use of delegated powers is involved. Retained EU law is a fundamental aspect of the Bill. Depending on the scope and definition, the scope of EU law that will be transferred to the UK legal system after Brexit is critical to the success of the Bill. The term “retained EU law”  might be confined to a narrow construction around the idea of laws that are triggered only  for domestic UK law purposes A different perspective is that the clause is all inclusive and allows delegated powers to amend  even primary legislation.  On this basis the breadth of the provision is such as to refer to any provision that could be made by an Act of Parliament. This is qualified by clause 7(1) that the power is only to be used to repair the wording in Acts of Parliament that do not make sense when the UK leaves the EU. The power is further restricted by clause 7(6) which makes clear that it cannot be used to impose taxation, make retrospective laws, create criminal offences or change the Human Rights Act 1998 or the Northern Ireland Act 1998.

The range of powers contained in the clause is based on the test of what a Minister may consider to be “appropriate.” This is subjectively worded and it is arguable that a more objective wording might be based on a concept of necessity or satisfying various grounds or criteria before the powers can be applied[42]. There are related concerns about how best to establish that there is a deficiency in EU law or other test of necessity that might be used.

There is also some discussion about what is necessary to include as specifically saved in retained EU law.  There is no definitive list of retained EU laws and this is proving to be the cause of anxiety amongst some specialists. In the area of environmental law, UKELA, an expert group of environmental  and administrative law lawyers has estimated that there will be at least 12  UK Acts of Parliament that are likely to have to require changes, that could fit under the terms of clause 7 of the Bill. This leaves considerable scope for the use of powers that do not seem to have adequate systems of accountability built into them[43].

Any use of Henry VIII powers raises questions about the need for consultation and the importance of transparency in the process. It is likely that Parliament will be keen to lay down principles that might guide their use and oversight of their role.

The Use of Delegated Powers and Devolution

Devolved powers granted to Scotland, Wales and N. Ireland will be affected by the decision to leave the EU.  In the case of Scotland and N. Ireland the referendum result was in favour of remaining in the EU. In the case of Wales, the vote was to leave. Currently EU law requires that each devolved nation must not act in a way that is incompatible with EU law. This requirement comes from the UK government being bound by EU law. In the case of Scotland the Bill alters the restriction to one of not being able to make a law that breaches EU law or modify retained EU law.  This means that devolved institutions will not have the power that UK institutions will have to change laws derived from the EU. This places a limit on devolved nations to determine their own policy making. Instead there will be common frameworks designed by the UK government to settle overarching policy.  This will mean that the devolved nations after Brexit will enjoy less powers than are presently devolved. This is seen as reversing the trend of granting more extensive devolved powers to the devolved governments. This will exacerbate the differential in policy making – leaving the UK Parliament and government with far more extensive policy making powers than the devolved governments. This is moving away from the intention behind devolved government which had been underpinned by a referendum before devolution had been agreed. The Bill does provide powers for devolved ministers to modify retained EU law ( Schedule 2) to correct deficiencies and to implement the withdrawal agreement. While such powers may be exercised independently, the powers are also granted to UK ministers.

There are general powers in the Bill to make amendments that give UK Ministers wide powers specifically in clause 7. In the case of N. Ireland there are restrictions on making any changes using delegated powers to the devolution legislation, the Northern Ireland Act 1998 for Northern Ireland. However, there is no corresponding restrictions for devolution legislation for Scotland or Wales. This gives rise to the concern that such powers might be used to adjust law making powers in Scotland or Wales.

Clause 11 and Schedule 3 allows ministers to release to the devolved nations large portions of EU retained laws within a general restriction on devolved nation competence. Concerns are raised that such significant constitutional powers would be best examined in primary legislation not delegated powers. One way would be to restrict the use of clause 11 to matters of constitutional significance. There are also concerns for delegated powers that need to be exercised by devolved institutions on their own or when they have to be exercised jointly by UK Ministers and devolved bodies. There is considerable uncertainty as to when and how such powers may be used. Testing their legality in court is likely to add to the considerable uncertainty in this area.

An opportune constitutional moment to ensure transparency over delegated powers

The scale and range of delegated powers considered as part of the Bill is likely to be large. In the absence of any clear time-table for withdrawal including the question of whether there will be a transitional arrangement there are many unknowns. Withdrawal itself will require, at least secondary legislation once the Treaty authorising withdrawal is signed. There may be a need for secondary legislation at different points in the negotiation process. This places on Parliament strong incentives to ensure that appropriate procedures are in place in advance to ensure that there are sufficient safeguards. The government needs to be clear on the primary scope and purpose of the Bill and to make sure, at the very least, that the justification or otherwise of the use of delegated powers can be assessed. The appropriateness of secondary or primary legislation is the key starting point and the will of Parliament has to be clear. One example is over the question of how rights might be affected. Here the courts will not accept that Parliament intends rights to be affected unless this is clearly made out and expressly stated. Otherwise there is a presumption that rights adversely affected would be illegal,[44] a clear rule of law issue. Past debates such as the passage of the Legislative and Regulatory Reform Bill 2005, is a good example of the rule of law concerns about using delegated legislation when primary legislation ought to have been used. Lessons from the debate on the Withdrawal Bill and the use of delegated powers that do not act excessively are pertinent to the debate on the Withdrawal Bill. Principles such as the use of only proportionate powers; setting limits on interfering with any existing protections and rights; and limitations on amendments that have constitutional significance are all relevant[45]. Setting substantial safeguards including protecting human rights is a minimum for considering the appropriate parliamentary procedures that will ensure adequate scrutiny over executive discretion.

The EU Withdrawal Bill raises rule of law principles in the context of ensuring that there is adequate parliamentary oversight. It is possible to argue that the following rule of law principles[46] should apply to the procedures associated with Henry VIII powers:

  • Limits should be set on the delegated powers applicable to particular purposes or subject matter;
  • Limitations on any powers that may be used to restrain individual rights should be scrutinised and overseen by Parliament;
  • Ensuring an appropriate set of procedures that allows adequate Parliamentary scrutiny;
  • Any use of sunset or sunrise clauses setting limitations on unfettered ministerial discretion should also be considered and used to ensure adequate scrutiny of unbridled executive powers.

In terms of identifying principles that could guide Parliament, a number might be advanced along the lines discussed by the Hansard Commission[47].

  • Consideration of a suitable form of a super “affirmative scrutiny” that is suitable to meet the needs of due process and transparency;
  • Designing a suitable enhanced scrutiny procedure consistent with the constitutional significance of the bill and an opportunity for Parliament to advance rule of law principles and ensure their observance;
  • Rule of law principles articulated by many select committee reports might form the basis of a set of constitutional standards as a guide in setting priorities and ensuring that both Houses of Parliament provide substantial scrutiny over the Withdrawal Bill;
  • Vetting the Withdrawal Bill will require careful scrutiny of the use of delegated powers and how best Parliament may provide scrutiny;
  • Setting time-scales and ensuring that procedures are appropriate to meet the needs of the Withdrawal Bill will encourage good practice and oversight;
  • Appropriate time for debate will require both Houses to set aside adequate time as well as ensuring co-operation between select committees. The role of the Liaison Committee will be pivotal in fostering appropriate co-operation between the relevant select committees;
  • The administrative allocation of principles between different committees needs the attention of the relevant Parliament authorities including the Clerk of the Houses of Parliament, to provide resources and the use of constitutional expertise;
  • New procedures are needed to ensure that the Withdrawal Bill is given adequate scrutiny. Lessons learned from the passage of the Legislative and Regulatory Reform Act 2006 should be considered in the specific context of the complexity of the Brexit debate.

Conclusions

The referendum result has tested many aspects of how the UK is governed, including how best to negotiate an agreement, and at the same time to keep Parliament fully informed. Underpinning the government is the need to maintain party unity and ensure a political consensus that is sufficient to have enabling legislation passed in parliament. This is the main constitutional challenge.

Rule of law considerations provides compelling arguments for Parliament to seize the initiative and adopt rigorous scrutiny of delegated powers as part of the consideration of the EU (Withdrawal) Bill 2017, reflecting the constitutional status of the European Communities Act 1972. It is unusual for Parliament to reject or amend statutory instruments, the majority are passed without much debate.  It is accepted that there are many informal ways that Parliament may seek to influence the Government but an underlying assumption is that because of the technical nature of many statutory instruments Parliament may acquiesce in agreeing their passage. In any event the political reality is that many MPs will find technical information and analysis tedious and uninteresting with few political benefits. However, in matters that have political significance it is likely that MPs will debate and discuss the main issues, including the question of whether or not to approve their passage.

In the case of the EU Withdrawal Bill, it is essential to ensure that an enhanced level of Parliamentary scrutiny of statutory instruments accords with the levels of scrutiny that are commensurate with the profound constitutional, social, economic and political considerations of leaving the EU. We have seen that there are many proposals being canvassed to enhance scrutiny and make Parliament more effective. Selecting the most appropriate is likely to require careful consideration. One way ahead emerges from the evidence to the House of Commons Procedure Committee[48], from Sir Stephen Laws QC. Sir Stephen’s proposals are that Parliament needs to set up appropriate mechanisms in terms of committees and systems to ensure that there is appropriate scrutiny over the management by the government to tackle the number of delegated powers under the Withdrawal Bill. His analysis is that there should be various principles that would inform Parliament as to how a closer look at delegated powers might best be undertaken. Debating the principles requires greater transparency and consideration of the most suitable principles to be applied. The number and complexity of statutory instruments suggest that there should be some mechanism to set priorities and even adopt a form of “ triage” to ensure that the most important statutory instruments are reviewed and subject to more detailed analysis. A recent report of the House of Lords Select Committee on the Constitution concluded that it is necessary to distinguish the powers necessary for technical amendment from those required for the purposes of making changes in policy. The Bill should enable there to be clarity so that the Government does not take the opportunity to make decisions without sufficient Parliamentary scrutiny[49].

The House of Lords Select Committee went further and proposed that there should be a general restriction on any expansion of delegated powers by restricting such powers to those that are only necessary for the purposes of adapting EU law as part of a withdrawal arrangement. Ultimately it will be a matter for Parliament to settle the process, particularly in terms of bringing together some conclusions and analysis. The role of the House of Commons is fundamental to the process and the recommendations are intended to enhance Parliament’s role.

The main political and media focus is on the politics of Brexit and EU negotiations at the expense of informed debate.  Brexit is a significant constitutional moment that might provide both Houses of Parliament with the opportunity to enhance the rule of law principles over delegated legislation at a time of economic uncertainty and unpredictability. All this is occurring in a climate of suspicion and enmity between opposing views on Brexit in the aftermath of a referendum that is unprecedented and that creates a popular voice that may be more powerful than existing political parties. The decision to leave the European Union has opened up an intense constitutional debate about the potential use of delegated powers granted to ministers to enable the UK to leave the EU. It is arguable, amongst critics of the Bill, that instead of restoring sovereignty to the UK’s Parliament, the probable affect will be to give more powers to the Executive than at any time in recent constitutional history, raising serious concerns about rule of law related issues on the adequacy of scrutiny and the appropriate accountability of government[50]. There are more widely drawn lessons about the UK’s experience that may have important significance for constitutional lawyers in general.  Constitutional arrangements, however ancient or venerable, may struggle to cope with the unexpected and unpredicted.  It is dangerous to assume that because constitutional settlements have worked reasonably well in the past that they should continue to do so when faced with an unprecedented upheaval or major constitutional events. Pragmatic solutions are necessary that are innovative and responsive, that correspond to the rule of law and ensure that the public interest is best protected. Longer term strategies may help address short term crisis and out of crisis better solutions may be found to replace outmoded practices. Optimism has to triumph over despondency and practical solutions prevail over ideological objections. If the UK and EU can achieve this balance then many lessons will have been learned. In the UK constitutional change has necessitated some degree of parliamentary innovation, it remains to be seen whether Parliament will deliver all that is expected on this ocassion.

[1] See: L. Halligan and G. Lyons, Clean Brexit  London: 2017, R. Bottle, Making a Success of Brexit and reforming the EU London: 2017, also G. Evans and Anand Menon, Brexit and British Politics London: Polity Press, 2017, N. Clegg, How to Stop Brexit (And make Britain Great Again) London: 2017.

[2]R ( Miller) v Secretary of State for Exiting the European Union[2017] UKSC 5.

[3][3] K.Ewing, Brexit and Parliamentary Sovereignty” {2017) 80(4) MLR 685-745.

[4] See: Thomas Poole “ Devotion to Legalism: On the Brexit Case” (2017) 80(4) MLR 696.

[5] Gov.uk Government announces end of European Communities Act ( 2nd October 2016. See:Thoburn v Sunderland City Council [2002] EWHC 195  and also discussed in  R( HS2) Action Alliance Ltd., V Secretary of State for Transport [2014] UKSC.See House of Commons Briefing Paper Legislating for Brexit: the Great Repeal Bill Number 7793 ( 21st November 2016). Many of the ideas set out in this paper have been influenced by the arguments made in the paper and are summarised here for ease of analysis.

[6] House of Commons Library, Briefing Paper, Statutory Instruments Number 06509 (15th December 2016).

[7] H.W.R. Wade, “ Sovereignty- Revolution or Evolution?” (1996) 112 Law Quarterly Review 568.P.P. Craig, “Sovereignty of the United Kingdom after Factortame” (1991) Yearbook of European Law 221.

[8] See for example, the Census Act 1920, the Civil Contingencies Act 2004.

[9] Clauses 7-9 and 17(1).

[10] See: Conor Gearty,  On Fantasy Island Oxford: Oxford University Press, 2016.

[11] See: R. Holme and M. Elliott eds., Time for a New constitution 1688-1988 Basingstoke Macmillan Press, 1988 and P. Hillyard and J Percy-Smith, The Coercive State: The Decline of Democracy in Britain London: Fontana Press, 1988.

[12] Reports 7 and 56

[13] Report 77

[14] Report 7

[15] Leading cases include  Ahmed and Ors v HM Treasury ( Justice Intervening Nos 1 and 2) ( 2010 UKSC 2 [ 2010] 2AC 544,

[16] Useful statistical data is available from House of Lords Library Note: delegated Legislation in the House of Lords since 1997 LLN 2016/001 ( 5th January 2016).

[17] David Renton, Preparation of Legislation  London: 1975

[18] Hansard Commission on Making the Law chaired by Lord Rippon; Hansard London 1993.

[19] Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation Hansard Society London: 2015.

[20] Cabinet Office,The  Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons ( 17th December 2015) CM 9177. See : House of Lords Briefing Paper Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons LIF 2015/0062 ( 23rd December 2015).

[21]  Jack Simpson Caird, Robert Hazell and Dawn Oliver, The Constitutional Standards of the House of Lords Select Committee on the Constitution London: The Constitution Unit, University College, Second edition London, August 2015.

[22] Report 64

[23] Report 51

[24] Report 64

[25] Report 25

[26] Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation Hansard Society London: 2015 Executive Summary p. 6.

[27] Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation Hansard Society London: 2015

[28] These are the negative resolution procedure, the affirmative resolution procedure or  a form of strengthened procedure.

[29] Gov.uk Government announces end of European Communities Act ( 2nd October 2016.

[30] See:Thoburn v Sunderland City Council [2002] EWHC 195  and also discussed in  R( HS2) Action Alliance Ltd., V Secretary of State for Transport [2014] UKSC 3

[31]See House of Commons Briefing Paper Legislating for Brexit: the Great Repeal Bill Number 7793 ( 21st November 2016). Many of the ideas set out in this paper have been influenced by the arguments made in the paper and are summarised here for ease of analysis.

[32]Hansard Society, Taking Back Control for Brexit and Beyond Hansard Society London: 2017

[33] One example is the European Medicines Agency that sets the complexity of the problem of mutual recognition.

[34]  See the various reports listed in the footnotes.

[35] Reports 25, 27, 77 and 138.

[36] Report 30

[37] Reports 51 and 77

[38] Report 56

[39]Reports  25,39 and 51

[40] Reports 138 and 145

[41]Report  139.

[42] This is the view of the House of Lords Constitution Committee. 3rd Report  of Session 2017-19 HL paper 19 EU ( Withdrawal Bill) Interim Report 7th September 2017.

[43] See: R. Macrory and J. Thornton, “ Environmental principles: will they have a legal role after Brexit? (2017) Journal of Planning and Environment Law 907.

[44]R.v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115.

[45]See :section 3 of the Legislative and Regulatory Reform Act 2006.

[46] These are a composite of points summarised from the House of Commons Briefing Paper. There is also some consistency in such principles emerging from previous House of Lords Reports.

[47] Hansard Society, Taking Back Control for Brexit and Beyond Hansard Society London: 2017

[48] House of Commons Procedure Committee, Evidence from Sir Stephen Laws

[49] House of Lords, Select Committee on the Constitution 3rd report ( 2017-19) European Union ( Withdrawal) Bill interim Report  para 39

[50] See: Hansard Society, Taking Back Control for Brexit and Beyond Hansard Society London: 2017

 

Power Point de la conférence :

PARLIAMENT AND BREXIT


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