NATIONAL ASSEMBLY FOR
WALES
CONSTITUTIONAL AND LEGISLATIVE
AFFAIRS COMMITTEE
INQUIRY INTO THE POWERS IN THE EU
(WITHDRAWAL) BILL TO MAKE SUBORDINATE LEGISLATION
Written Evidence from Professor
Thomas Glyn Watkin
- I am grateful
to the Constitutional and Legislative Affairs Committee for the
invitation to make a written submission and participate in the
panel session in relation to this inquiry. The opinions expressed
in this paper are entirely my own and do not represent the views of
any body or institution with which I am or have been
associated.
- This paper was
written following the amendment of the EU (Withdrawal) Bill during
its Committee Stage in the House of Commons, while its Report Stage
and Third Reading in the Commons as taking place and prior to its
consideration by the House of Lords. Footnotes have been added in
an attempt to cover relevant amendments made at Report.
The EU (Withdrawal) Bill and subordinate
law-making powers
- The Bill
proposes to provide for the withdrawal of the UK from the EU by
repealing the European Communities Act 1972 and converting EU law
as it applies on the day of withdrawal (‘exit day’)
into a distinct body of law (termed ‘retained EU law’)
within the domestic law of the UK.
- The Bill
recognizes that retained EU law will be ‘deficient’ in
a number of ways (s.7 (1) & (2)). Power is therefore given to
‘prevent, remedy or mitigate’ these deficiencies. This
power is to be exercised by Ministers of the Crown making
regulations in the form of statutory instruments. Ministers are
empowered to make such provision as they consider
‘appropriate’ to achieve this. Subject to certain
limitations (s.7(6)), the power enables a Minister ‘to make
any provision that could be made by an Act of Parliament’
(s.7(4)). It is a ‘Henry VIII’ power. Usually, the
exercise of such a power requires approval by resolution of both
Houses of Parliament.
- The power
enables Ministers to make changes to the body of retained EU law.
This body of law has three components, as set out in sections 2, 3
and 4 of the Bill.
·
EU legislation which applies
directly to the UK as a member State (s.3);
·
Rights, powers, liabilities,
obligations, restrictions, remedies and procedures which exist as a
consequence of EU membership (s.4);
·
Laws which have been enacted as part
of UK domestic law but are derived from EU law as a consequence of
UK membership (s.2).
All three components are amendable as deemed
appropriate by a Minister of the Crown to prevent, remedy or
mitigate deficiencies.
- The Bill also
proposes that Ministers of the Crown may make regulations to make
such provision as they deem appropriate to prevent or remedy any
breach of a UK international obligation which might otherwise arise
from UK’s leaving the EU (s.8). Ministers may also make such
provision as they deem appropriate to implement the withdrawal
agreement if they consider such a provision should be in force by
exit day, unless Parliament has already enacted a statute approving
the final terms of withdrawal (s.9, as amended). In both of these
instances, and subject to certain limitations (ss.8(3) & 9(3)),
the power enables a Minister ‘to make any provision that
could be made by an Act of Parliament’ (ss. 8(2) & 9(2)),
and – in the case of the power given by section 9 –
this includes the power to modify the EU (Withdrawal) Act
itself.
- Corresponding
powers are given to devolved authorities, and therefore to the
Welsh Ministers in relation to Wales (s. 11 and Schedule 2). The
correspondence however is not exact. The devolved authorities are
only permitted to legislate regarding one component of retained EU
law, namely EU-derived domestic law (Schedule 2, ¶¶ 3, 15
& 23),
and are not permitted to make modifications to the EU (Withdrawal)
Act where that is allowed to Ministers of the Crown (Schedule 2,
¶ 21(4)(e)). Their exercise of the powers is limited to the
devolved competence of, in Wales, the National Assembly or the
Welsh Ministers, and where the competence requires the consent of,
or consultation with, a Minister of the Crown, it must be obtained
or take place. In addition, consultation with UK ministers is
required regarding certain uses of the powers.
Scrutiny of the relevant statutory
instruments
- Provision with
regard to the scrutiny of the statutory instruments containing
regulations is set out in Schedule 7 of the Bill, brought into
effect by section 16.
- Despite the
generally accepted principle that statutory instruments amending
primary legislation by means of secondary legislation should
require affirmative resolution by both Houses of Parliament, the
Bill as introduced limited the use of the affirmative procedure to
a narrower range of instruments, namely those which
either:–
·
established public authorities
within the UK, or
·
provided for the transfer of an
erstwhile EU function to one of the new UK public
authorities, or
·
provided for an erstwhile EU
legislative function to be exercised by a UK public
authority, or
·
made provision relating to the fees
of UK public authorities regarding the exercise of their functions,
or
·
created or widened criminal
offences, or
·
created or amended the power to
legislate.
Affirmative procedure would also be required for
an instrument which sought to amend the EU (Withdrawal) Act
itself.
- It was
proposed that instruments which did not fall into one or more of
these categories should be subject to the negative resolution
procedure. They would become law by being made – even where
they amended primary legislation – and would remain law
unless annulled in pursuance of a resolution in either House,
(Schedule 7, ¶¶ 1 (1)-(3); 6 (1)-(3); 7
(1)-(3)).
- The transfer
of an existing EU function which is not of a legislative character
to an already existing UK public authority is not intended to
attract the affirmative procedure. From the perspective of devolved
government in Wales and the legislative competence of the National
Assembly, this has the consequence that the transfer of a function
to a public authority which is not a devolved Welsh authority
(within the meaning of that term in the Government of Wales Act
2006 as amended by the Wales Act 2017) places its subsequent
modification beyond the reach of Assembly legislation unless the
consent of the UK government to the modification is
obtained.
- Similar
scrutiny procedures for the devolved authorities are proposed. With
regard to Wales, it is proposed that the same categories of
statutory instrument should attract affirmative procedure in the
Assembly and that the negative procedure should apply to others
(Schedule 7, ¶¶ 1 (7)–(8); 6 (5)–(6) & 7
(5)–(6), as amended).
Sifting mechanism
- Dissatisfaction with the breadth of these powers
resulted in amendments to the proposed Schedule 7 during Committee
Stage in the House of Commons. A ‘sift’ mechanism was
inserted into the Bill as new paragraphs 3 and 12 to Schedule 7.
This provides that statutory instruments exercising the powers
given in relation to retained EU law, international obligations and
the implementation of withdrawal are not to be made using the
negative procedure unless the Minister has laid before the House of
Commons a draft of the instrument together with a written statement
setting out his opinion that it should be subject to the negative
procedure and his reasons for holding that view. The Minister can
then make the instrument, but only if a Commons committee charged
with considering the issue has made a recommendation regarding the
appropriate procedure or has failed to make such a recommendation
within 10 sitting days.
- The Bill as it
currently stands does not make provision for similar sift
mechanisms with regard to the scrutiny of instruments by the
devolved legislatures. It is submitted that, it having been decided
that such a mechanism is appropriate at Westminster, for the same
reasons one would be appropriate in the devolved legislatures.
Within the National Assembly consideration should be given to
allocating the sift either to the Constitutional and Legislative
Affairs Committee or to a committee specifically established for
the purpose. A suitable amendment should be made to the relevant
provisions in the EU (Withdrawal) Bill to permit that to
occur.
- The situation
of the devolved authorities in Wales raises a further issue
regarding the use of the negative procedure and the implementation
of a sifting process. A government without a majority cannot
guarantee the approval of statutory instruments under the
affirmative procedure nor prevent their rejection by negative
procedure. In an Assembly in which the government and other party
groupings are evenly balanced, a tied vote on an affirmative
procedure results in the instrument not being approved, while a
tied vote on a motion to annul means that the instrument remains
valid. The sifting mechanism therefore assumes even greater
significance.
Capacity
- Scrutiny
before the Westminster Parliament is expected to absorb a great
deal of parliamentary time. Even with several hundred MPs in the
House of Commons and an even greater number of peers in the Lords
available to contribute to the work, the task is daunting. The task
before the devolved legislatures is even more so. With fewer than
50 AMs in the Assembly who can serve on scrutiny committees, there
is going to be great pressure on their time and on that of the
Assembly Commission staff who will have to service their
deliberations. There is also a considerable challenge before the
civil servants within the Welsh Government to produce the statutory
instruments to effect the modifications considered to be
appropriate.
Scrutiny of Westminster
SIs
- As noted above
regarding the transfer of current EU functions to UK public
authorities, the content of the subordinate legislation made at
Westminster can have significant consequences for the devolved
administrations. In that the devolved authorities are initially
limited to modifying retained EU-derived domestic law
whereas UK Ministers can also modify retained direct EU law and
other rights etc., which are recognized as a consequence of EU
membership, the modifications made by UK Ministers in areas of
retained EU law which correspond to matters which are not reserved
can affect both the legislative and executive competence of the
devolved administrations. To ensure that the exercise of these
powers by UK Ministers does not have detrimental consequences for
the devolved administrations, some scrutiny of such statutory
instruments by them would be required. This could be achieved by
requiring all instruments to be laid in draft before the devolved
legislatures as well as the Westminster Parliament so as to enable
them to comment upon and suggest changes to the draft – in
essence by using bespoke super-affirmative and enhanced negative
procedures. This would, of course, increase yet further the burden
upon the limited capacity of the devolved
administrations.
- Given the
importance of the modifications which may be made, it may even be
thought appropriate to increase the ambit of Standing Order 30A so
as to include those elements of retained EU law which are not open
to modification by the Welsh Ministers.
- In relation to
several of these points, it would be beneficial for the relevant
Assembly subject committees to comment on the proposed subordinate
legislation as well as having them referred to CLAC or any special
committee established to scrutinize Brexit instruments. Possibly
the subject committees should comment to the relevant committee for
their views to be included in the one report. Such a procedure
should apply in the context of involvement in any enhanced
procedures adopted for UK SIs as well.
- Finally, it
might be thought appropriate to establish a standing consultation
mechanism to enable expert opinion to be taken on the proposed
subordinate legislation both at the Assembly and in Westminster.
Experts in the devolved policy areas as well as those learned in EU
law might be enabled to comment quickly and effectively on proposed
SIs for the benefit of the relevant committees. It might even be
thought suitable for advice to be given to the sift committee at
Westminster, and its remit expressly broadened to allow it to
recommend where appropriate the use of bespoke super-affirmative
and enhanced negative procedures aimed at involving the devolved
administrations in the scrutiny process of Westminster
SIs.
Thomas Glyn Watkin*
19 January 2018