Brexit fundamentally challenges constitutional balance between Parliament and Government

06 September 2017

The Constitution Committee calls for the Government to act on the Committee's criticism of the "unprecedented" transfer of powers from Parliament to Government, proposed in the European Union (Withdrawal) Bill.

The Committee say that the Bill, which begins its second reading stage in the House of Commons today, is likely to be the most important legislation that this Parliament will consider. Their report says that the "political, legal and constitutional significance of the Bill is unparalleled."

The Committee's previous report The 'Great Repeal Bill' and delegated powers, published in March, has been cited by Prime Minister Theresa May and Brexit Secretary David Davis as an endorsement of the EU (Withdrawal) Bill. While that report stated that the Government would need "relatively wide" powers to make the necessary changes to adapt EU law, it has been selectively quoted. The report explicitly called for a number of key limitations on those powers.

Recommendations

The Committee's new interim report says that the Bill "raises a series of profound, wide-ranging and inter-locking constitutional concerns", and recommends:

• That the Bill ensures legal certainty so that individuals, organisations and the government know what exactly the law is post-exit, without having to resort to litigation. The multiple uncertainties and ambiguities currently contained within the Bill raise fundamental concerns from a rule of law perspective.
• That the powers granted to Ministers under the Bill must only be used to make the necessary technical changes to adapt EU law to function after Brexit. They must not be able to be used to implement policy decisions.
• That Parliamentary procedures must ensure that delegated legislation which contains significant policy decisions is subject to meaningful scrutiny by Parliament.

Chairman's comments

Commenting on the report Baroness Taylor of Bolton, Chairman of the Committee, said:

"The European Union (Withdrawal) Bill represents an extraordinary transfer of legal powers from Parliament to the Government, with no additional oversight; we believe this is unacceptable.

"We acknowledge that the Government needs significant powers in order to deliver legal certainty after Brexit. However, we warned the Government that such powers must come with tougher parliamentary scrutiny mechanisms and we are disappointed that we have not only been misquoted by the government, but that our key recommendations have been ignored.

"The Committee will launch a full inquiry on the EU (Withdrawal) Bill shortly."

The 'Great Repeal Bill' and delegated powers

© House of Lords