Constitutional Impacts of Brexit

On the 23^rd of June 2016, Britain voted to withdraw from the European Union. The withdrawal has raised many legal and constitutional concerns. The first issue to be addressed is the relationship between the executive government and Parliament during the process of withdrawing from the European Union: there are many questions regarding issues that need to be addressed and by whom. This raises questions about the balance of power between both houses: it could be argued that during the withdrawal process, the executive have been given too much power. For example through clause 7 of the European Union (Withdrawal) Bill, the executive are given Henry VIII powers. In addition to concerns about the extensive powers granted to the executive- concerns have been raised regarding Parliament’s opportunities for scrutiny. Further, there are serious constitutional concerns in relation to the legislative competence of Scottish devolved institutions: clause 11 of the withdrawal bill appears to have breached the constitutional convention found in the Scotland Act 1998: the Sewel Convention.

The first legal and constitutional issue that arose in terms of the United Kingdom’s withdrawal from the European Union was a question of who could trigger article 50. Initially, it was assumed that the UK government could trigger article 50 through Royal Prerogative which grants the power to enter and withdraw from treaties. However, as a result of triggering article 50, the European Communities Act 1972 would be void. Triggering article 50 through Royal Prerogative would free the UK from their treaty obligations under the Act, which is embedded into domestic law not in the executive’s legislative competence. This would be unlawful[1]. This was established in the Miller case[2], which confirmed that an Act of Parliament was required to trigger article 50. Lord Hughes stated “legislative programme will be required in Parliament, upon the UK’s departure from the EU”[3]. This highlights how from the beginning of the process of leaving the EU, Parliament are required to hold the executive to account due to the extent of power they have acquired.

Clauses 7-9 of the EU (Withdrawal) Bill raises many concerns regarding the constitutional effects in the balance of power between the executive and Parliament. Clause 7(1) states that ‘a minister of the crown may by regulations make such provisions as the Minister considers appropriate’ on ‘failure of retained EU law to operate effectively’ or on ‘any other deficiency’[4]. Clause 7(5) clarifies that powers given in clause 7(1) are Henry VIII powers: government are able to legislate on or repeal any primary legislation, without having to go through Parliament. The House of Lord’s criticised the bill in their 2017 Select Committee on the Constitution interim report, not only because it gives extensive powers to government but does not allow Parliament to hold the government to account[5]. In this report, the committee called for the government to use their delegated powers under the Great Repeal bill ‘as limited as possible.’[6] This highlights the constitutional concern that the executive has too much power and control over the exit process. In the later house of Lords interim report of January 2018, it was argued that it was ‘preferable’ to treat all retained EU law as primary legislation because it was subject to more scrutiny: if the legislation is secondary then it is vulnerable to revocation and less scrutiny[7]. There is concern about whether these powers sufficiently distinguish between making the ‘necessary amendments’ and using them to make policy changes the government were previously unable to make as it was not in their legislative competence[8].

There are further concerns regarding clause 9 of the bill. This sets out the implementation of terms of withdrawal prior to exit day. As mentioned previously, Parliament are unable to scrutinise or amend these terms themselves. It is unlikely that the bill will be extended or reopened, therefore due to the narrow timeframe only the government are able to amend terms, Parliament will have to ‘take it or leave it’[9], with no deal as a result. However, as a result, the executive are likely to be more ‘mindful of Parliamentary reaction’.

Primarily, the distinctive wording in clause 7 ‘as the minister considers appropriate’ is subjective in nature. This provides an interesting contrast with the Public Bodies Act 2011 where it uses the wording “only if the minister considers that the order serves the purpose of improving the exercise of public functions.”[10] This means that legislation may be functional, but still contain deficiencies[11]. As mentioned before, a constitutional effect of this may be that the wording of this clause could allow for ministers to use these powers for policy change, with no scrutiny from Parliament. The nature of the Henry VIII clause allows ministers to legislate on any primary legislation, including those of great constitutional significance such as the Fixed Term Parliament Acts 1911 and 1949, or the Scotland Act 1998. However, the chance of these powers being used out of the context they were intended could be reduced by the fact the executive know that if limits aren’t followed, the courts are able to quash them. In order to overcome this and balance the power of the executive with the power of Parliament, Professor Tarunabh Khaitan suggested a ‘constitutional protection clause’ which ensures the powers given to the executive are regulated in a way that allows them to freely legislate on delegated EU legislation in a way that is necessary[12]. Furthermore, the Women and Equalities Committee Report also suggested an ‘express protection’ for equalities legislation. These are both examples of ways that power between the legislative and executive is balanced, and important constitutional documents and principles of the UK are protected.

Another way power could be balanced between the executive and Parliament is through schedule 7 of the European Union (Withdrawal) Bill- setting out when and how Parliament are able to scrutinise the government during the withdrawal process. Schedule 7(1)(2) gives examples of where affirmative procedure must be used. This requires both houses of Parliament to approve legislation before it is enacted. However schedule 7(1)(3) states anything else not set out in schedule 7(1)(2) must be subject to negative procedure. Negative procedure is where the legislation will be passed with no opportunity to debate unless there is an objection from either house within 40 days. This is constitutionally controversial because negative procedure is not as rigorous as affirmative- where both houses have to agree before the bill is passed. The government justify this procedure using the fact that there is a strict time limit before exit day- however the issues they are legislating on are of such great constitutional significance, ‘urgent procedures are not acceptable.’[13]

Clause 7(7) of the European Union Withdrawal Bill states that no regulations should be made after 2 years of exit day. This is referred to as the sunset clause- it protects Henry VIII powers from being abused and ‘enhances Parliamentary supervision.’[14] This is of constitutional significance because it allows a balance of power between the two bodies and limits the executive’s legislative power in the long run. However, clause 9 and 17 combined could amend the sunset clause and extend the period the government are able to legislate on Acts of Parliament. While this is legally possible, this is largely subject to political scrutiny.

In addition to the legal and constitutional concerns with regards to the relationship between the UK executive and Parliament, there are serious concerns about the legislative competence of the Scottish devolved government. Clause 11 of the European Union Withdrawal Bill states that it is out with Scottish government’s legislative competence to modify retained EU law which would not be compatible before withdrawal, and repeals s29(2)(d) of the Scotland Act 1998[15]. The bill ‘cuts through the well-established legislative competences set out in the Scotland Act’[16] regarding the UK’s ability to legislate in areas devolved to Scotland. The Scottish government believe that devolved governments should be able to provide “proper levels of scrutiny and oversight of the exercise of all the powers in the bill by both UK and Scottish Ministers.”[17] This is constitutionally significant because the Withdrawal bill overrides aspects of a well-established constitutional document (Scotland Act 1998) therefore devolved government’s should be able to provide scrutiny.

The next issue regarding the legislative competence of the Scottish Government is the breach of the Sewel Convention set out in Scotland Act 1998 where “it is recognised that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”[18] The constitutional effect of this is that the withdrawal bill allows the UK executive to legislate on devolved matters without the consent of the Scottish Government. This constitutional principle is the Sewel Convention: Tom Mullen argued that the UK should seek consent from the devolved government “on grounds of political practice and constitutional practice.”[19] However, the government have responded to these concerns that they are “committed that these powers will not normally be used to amend domestic law in areas of devolved competence.”[20] This issue was addressed in the second part of the Miller case: an Act of Parliament was required to trigger article 50 because it altered the legislative competence of the Scotland Act, and authorising the withdrawal would require consent through the Sewel Convention[21]. While this is only a constitutional convention and therefore not legally enforceable, it must be noted that this is a well-established practice set out in the Scotland Act, and it gives more political than legal protection. In the Miller case, it was held that there was no legal requirement to seek consent of devolved institutions. However, it was made clear that this ‘didn’t suggest there was no such requirement at all.’[22]

As a result of these issues the Scottish government wrote in the Legislative Consent Memorandum that they “cannot recommend Scottish Parliament gives consent, even conditionally, to the bill in its current form.”

In conclusion, the UK’s withdrawal from the European Union gives rise to many legal and constitutional issues. It is clear that there is not an equal balance of power between the executive and Parliament due to the delegated powers and Henry VIII clause. The powers are extensive and subject to insufficient scrutiny from Parliament (and devolved governments), however, political pressure makes it unlikely these powers will be abused to create policy. Furthermore, the withdrawal bill clearly breaches constitutional convention  regarding the Sewel Convention and the UK’s ability to legislate on devolved matters. While the Miller case established the UK did not require consent to pass the withdrawal bill, there are still calls for the government not to legislate on devolved matters.

Bibliography:

• M. Gordon, ‘Brexit: A Challenge for the UK Constitution’, EUROPEAN CONSTITUTIONAL LAW REVIEW, 12/2016, Volume 12, Issue 3
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
• European Union Withdrawal Bill
• Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2017
• Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2018
• Finance and Constitution Committee, European Union (Withdrawal) Bill (UK Parliament legislation), 31 January 2018, FCC/S5/18/4/1
• Public Bodies Act 2011 chapter 24
• Jack Simson Caird et. Al, European Union (Withdrawal) Bill, House of Commons Library Briefing Paper, (number 8079), September 2017
• Scotland Act 1998 Ch. 46
• Scottish Parliamentary, Legislative Consent Memorandum (European Union (Withdrawal) Bill), (LCM- S5-10) Scotland, Scottish Parliamentary Corporate Body, 2017
• A. McHarg et. al, ‘Brexit and Scotland’, The British Journal of Politics and International Relations, 08/2017, Volume 19, Issue 3
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[1] M. Gordon, ‘Brexit: A Challenge for the UK Constitution’, EUROPEAN CONSTITUTIONAL LAW REVIEW, 12/2016, Volume 12, Issue 3, p416

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

[3] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, 283.

[4] European Union Withdrawal Bill, clause 7

[5] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2017, page 2

[6] ibid., paragraph 38

[7] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2018, paragraph 65

[8] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2017, p2 para 39

[9] Finance and Constitution Committee, European Union (Withdrawal) Bill (UK Parliament legislation), 31 January 2018, FCC/S5/18/4/1

[10] Public Bodies Act 2011 chapter 24s.8

[11] Jack Simson Caird et. Al, European Union (Withdrawal) Bill, House of Commons Library Briefing Paper, (number 8079), September 2017, page 55

[12] Jack Simson Caird et. Al, European Union (Withdrawal) Bill, House of Commons Library Briefing Paper, (number 8079), September 2017, paragraph 59

[13] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2017, paragraph 60

[14] Jack Simson Caird et. Al, European Union (Withdrawal) Bill, House of Commons Library Briefing Paper, (number 8079), September 2017, paragraph 61

[15] Scotland Act 1998 Ch. 46 s.29(2)(d)

[16] Scottish Parliamentary, Legislative Consent Memorandum (European Union (Withdrawal) Bill), (LCM- S5-10) Scotland, Scottish Parliamentary Corporate Body, 2017, paragraph 16

[17] ibid,. paragraph 32

[18] Scotland Act 1998, Ch. 49 s28(8)

[19] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2018, paragraph 238

[20] Select Committee on the Constitution, ‘European Union (Withdrawal) bill: interim report’, Authority of the House of Lords, 2018, paragraph 238

[21] A. McHarg et. al, ‘Brexit and Scotland’, The British Journal of Politics and International Relations, 08/2017, Volume 19, Issue 3, page 521

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