The European Union (Withdrawal Agreement) Bill will make no further progress before the general election. The Bill is however of potentially huge constitutional significance, and a new government could well look to pass it quickly. It was therefore imperative that it be subjected to parliamentary scrutiny in the short period between its forestalled second reading on 22 October and Parliament’s dissolution on 6 November.
On this basis the House of Lords Constitution Committee on Tuesday published an interim report on the Bill. The Committee makes clear that it does not pass judgement on the policy issues in the Bill or those related to the United Kingdom’s withdrawal from the European Union (EU) more broadly. But such is its complexity that it sees value in both explaining the purpose and effect of the Bill and in exploring at this stage the technical legal challenges that the Bill seeks to address.
The Bill implements the Withdrawal Agreement which was reached provisionally between the United Kingdom and the European Union on 17 October 2019. It provides for the ongoing relationship between the UK and the EU during the implementation period up to 31 December 2020 and for the legal obligations which arise from this. It also seeks to implement two related agreements, the EEA EFTA Separation Agreement between the UK and Norway, Iceland and Liechtenstein, and the Swiss Citizens’ Rights Agreement between the UK and Switzerland. The Bill also amends, and departs in significant ways from, the European Union (Withdrawal) Act 2018 (‘the 2018 Act’); it makes specific provision in relation to citizens’ rights and workers’ rights and to the Ireland/Northern Ireland protocol to the Withdrawal Agreement; and it contains several broad secondary law-making powers in providing for a complex ongoing relationship to EU law both during the implementation period to 31 December 2020 and for the life of the Withdrawal Agreement.
Legal continuity into and after the implementation/transition period
The main purpose of the Bill is continuity: to maintain the effect of EU law within domestic law at least until the end of December 2020 and possibly beyond, since the Withdrawal Agreement allows for an extension of the transition period for up to two years (Art. 132; clause 30 of the Bill). The Withdrawal Agreement (Art. 127) states that European Union law “shall be applicable to and in the United Kingdom during the transition period”. (Notably the Agreement in most places refers to the “transition period” while the Bill calls this the “implementation period”; the terms will be used inter-changeably here). Furthermore, during the transition period, Union law shall have “the same legal effects” in the United Kingdom as it produces within the European Union and its Member States, “and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union.” (Art 127(3)) In this regard the Bill (clause 1) “saves” the terms of the European Communities Act 1972 for the implementation period. Although the ECA is repealed by section 1 of the 2018 Act, this latter Act is effectively parked, as its provisions on “retained EU law” will not take effect until the end of the implementation period. Furthermore, clause 2 of the Bill saves “EU-derived domestic legislation” for the duration of the implementation period.
For officials and lawyers it appears that little will change in this period. Part 4 of the Withdrawal Agreement, which concerns transition and hence continuity in the UK-EU relationship, is inserted into the definition of EU law and “the Treaties” within the ECA (new section 1A of the 2018 Act). In short, the ECA framework will continue to apply until the end of 2020 to ensure the effective primacy of EU law during this period. This means that during the implementation period EU rules will apply in the United Kingdom as at present, including the operation of directly applicable EU law made before the end of 2020. New section 1A(3)(d) modifies section 3(1) of the ECA to bring the Withdrawal Agreement within the purview of the rules of interpretation and the primacy of Court of Justice (CJEU) decisions on matters of EU law. The Government explains that this will “ensure that EU rules are interpreted and applied consistently in both the UK and the EU for the duration of the implementation period” (Explanatory Notes, para 26) and “[d]uring the implementation period, the UK will maintain the same recourse to the EU’s judicial review structures as a Member State.” (EN, para 27) To this end, the Bill amends section 6 of the 2018 Act so that its provisions which end the jurisdiction of the CJEU will only take effect at the end of the implementation period (clause 26(1)). All of this is designed to implement the “same legal effects” principle of the Withdrawal Agreement (Art. 4(1)), allowing citizens to rely upon this agreement, and its primacy, before domestic courts. The continued effect of ECA primacy also applies to devolved institutions and devolved legislation, each of which is of course subject to EU law primacy under current arrangements.
A controversial part of the Withdrawal Agreement concerns the Protocol on Ireland/Northern Ireland. The Committee report explains this protocol and, in particular, how the bespoke customs and other tax arrangements apply in Northern Ireland under the Agreement. It also details how these may be continued not on the basis of cross-community voting procedures but by a majority of the Members of the Northern Ireland Assembly, present and voting. The Committee will almost certainly return to this issue should the Bill be revived in the new Parliament.
The provisions in the Bill concerning Northern Ireland also bring with them extensive secondary law-making powers. Indeed, so wide are the powers in clause 21 of the Bill that they will require extensive parliamentary scrutiny. These powers are, given their breadth, an exception to our general comment on the scope of delegated powers in the Bill which now follows.
Delegated powers are one of the Bill’s main features. Again the Committee intends to revisit these in light of further consideration by the Delegated Powers and Regulatory Reform Committee but it nonetheless offers a detailed account of their range and scope. The Committee notes that a number of powers within the Bill are not subject to the same levels of scrutiny as those provided for in relation to equivalent powers in the 2018 Act. Indeed, the Bill’s arrangements have been strongly criticised on this blog. With respect, what has been missed in critical accounts is that the powers in the Bill are for the most part contingent for their effect upon the Withdrawal Agreement. Powers in Part 1 of the Bill are constrained by the terms of these Agreements in a similar way to that in which section 2 powers under the ECA are delimited by the terms of EU law. The Committee points out that if these powers are used to create statutory instruments which are considered to be contrary to the terms of the Agreement they would be open to legal challenge.
The Bill appears at first to confer exceptionally broad powers to make such regulations “as the Minister considers appropriate” – language that was subject to strong but ultimately unsuccessful parliamentary push-back during the passage of the 2018 Act. However, the powers conferred by the 2018 Act are designed to implement ill-defined policy objectives, such as to correct “deficiencies” or a failure of retained EU law “to operate effectively”. By contrast, delegated powers in the Bill are for the most part restricted to the implementation of certain aspects of the detailed provisions in the Withdrawal Agreement and related EU legislation. The citizens’ rights provisions in Part 3 provide an example. Citizens’ rights are those rights of union citizens located in the UK and UK citizens located in other Member States. The Bill protects such rights in the UK primarily by giving direct effect to the Agreement’s provisions (clauses 5 and 6), and secondarily by conferring delegated powers to supplement and extend the treatment of those rights (Part 3). For example, clause 7 empowers ministers to set a deadline for residence document submission, subject to the 6 month constraint imposed by the Agreement. Clause 9 provides powers to restrict rights of entry and residence as specified in article 20(1), (3) and (4) of the Withdrawal Agreement. But that article in turn incorporates a chapter of the EU citizens’ rights directive, articles 27-33 of which contain detailed provisions covering permissible grounds of public policy for restricting entry or exit for union citizens and their family members. There are numerous similar examples within the Bill.
In short, the various delegated powers in the Bill are framed in broad terms, and may well benefit from a tightening of scrutiny procedures (e.g. by a sifting mechanism to enable a parliamentary committee to recommend upgraded scrutiny for certain instruments). However, the wider purpose which they serve acts to circumscribe their practical effect in a fundamental way, thereby significantly diminishing any apparent constitutional concerns which they may, on first impressions, appear to raise.
One footnote here is clause 36 which ‘recognises’ parliamentary sovereignty, in a way reminiscent of but not identical to the operation of section 18 of the European Union Act 2011. The Committee discusses this clause and intends to return to the intended interaction between clause 36 and the temporary primacy of EU law in a subsequent report.
Citizens’ rights and workers’ rights
Quite apart from delegated powers, there are a number of important policy matters covered by the Bill that relate to citizens’ and workers’ rights, even if their constitutional ramifications are slight. Clause 10 (retention of existing grounds for deportation) amends the Immigration Acts. Any alteration of the highly complex immigration regime should be subject to careful scrutiny for its impact on Convention rights and the rights of migrants more generally. Clause 15 creates a new corporate body, the Independent Monitoring Authority and sets out its powers and functions in Schedule 2. This is a complex independent complaints body with powers to lay reports on how citizens’ rights have been respected, and to initiate proceedings in the courts where necessary. The Committee observes that the creation of the IMA “raises several important if localised constitutional questions relating to the creation, independence and functions of an independent complaints and monitoring body, as well the relationship between the IMA and the court system as well as between the IMA and the devolved authorities.” (para. 55).
The Bill also creates a scheme (in clause 38 and Schedule 4) designed to give effect to the Government’s commitments regarding a so-called ‘level-playing field’ in respect of workers’ rights during and after the implementation period. Nicola Countouris and Keith Ewing have argued that Prime Minister Johnson’s negotiated withdrawal agreement is a significant climb-down for workers’ rights from the commitments in Prime Minister May’s agreement. If so, the Bill’s scheme for addressing workers’ rights is nevertheless virtually identical to that published by May’s Government in March 2019. Schedule 4 basically creates a Government-led system to track regression from EU standards or divergence from future standards, both in consultation with worker and employer’s representatives. While the machinery is of little constitutional concern, the policy implications behind it are quite significant, both for workers’ rights and the future relationship with the EU. Given their complexity and significance, these parts of the Bill would also benefit in due course from detailed parliamentary scrutiny.
The Committee also addresses provisions on parliamentary oversight of EU-lawmaking (clause 29), extension of the implementation period (clause 30), negotiation of the future-relationship (clause 31) and the disapplication of the Constitutional Reform and Governance Act 2010 to the ratification of the treaty providing for the future relationship. These are bound to be of interest to constitutional lawyers. To an extent, these provisions provide for a relatively muscular parliamentary role over scrutiny of EU law-making and negotiation of the future relationship. For instance, they allow the European Scrutiny Select Committee of the House of Commons to not only review EU law-making in the implementation period but to set the wording of a motion to be moved in the House of Commons by a minister. Clause 31 provides for a significant upstream role for the House of Commons in commenting on negotiating objectives for the future relationship and approving or disapproving them prior to the minister being able to proceed on them internationally.
Yet here too points of detail will require careful scrutiny. The oversight of current EU law-making gives no role to the House of Lords’ highly respected European Union Select Committee, and the provisions providing for an ongoing parliamentary role do not make space for the devolved authorities beyond being the passive recipients of reports. The disapplication of the CRAG both from the Withdrawal Agreement itself as well as the treaty covering the future relationship is at the very least a sensitive matter. On the one hand, Parliament’s upstream powers in respect of any treaty governing the future relationship are more extensive than anything foreseen under the CRAG. Yet on the other, the passage of the Withdrawal Agreement Bill is arguably no substitute for careful scrutiny of the complex provisions of the Withdrawal Agreement itself. These are all issues to which the Committee may well return in the new Parliament.
The Bill is a wide-ranging and deeply complex measure intended to implement three draft international Agreements which have themselves not been fully scrutinised by Parliament. The Committee’s report is a detailed account of what the Bill’s purpose is. How that purpose is to be given effect and the full constitutional implications which it bears can only be determined fully through the taking of evidence. It is essential that the Bill be subjected to full and detailed deliberation should it return to Parliament in January.
Jeff King is a Professor of Law at UCL Laws. Stephen Tierney is a Professor of Constitutional Theory in the School of Law, University of Edinburgh. Both serve as Legal Advisers to the House of Lords Constitution Committee. This report is written in their personal capacity only.
(Suggested citation: J. King and S. Tierney, ‘The Constitution Committee Reports on the European Union (Withdrawal Agreement) Bill’, U.K. Const. L. Blog (7th Nov. 2019) (available at: https://ukconstitutionallaw.org/))