COVID-19 no excuse for ignoring the constitutional challenges of Brexit

9 Jun 2020 10:39 AM

The Constitution Committee publishes a report on the constitutional issues and legislative challenges of delivering Brexit so far and looks ahead to those to come.

• Constitution Committee
• Report: Brexit legislation: constitutional issues (PDF)
• Report: Brexit legislation: constitutional issues (HTML)

Background

Since the referendum on the United Kingdom’s membership of the European Union the process of Brexit has been a national fixation. The COVID-19 pandemic has since monopolised national and international attention but while the context has changed, the issues around Brexit have not.

The Committee has examined the continuing constitutional challenges of legislating for Brexit.

Key findings

The committee highlights concerns and makes recommendations in key areas, including:

Delegated powers

• Delegated powers should be sought only when their use can be clearly anticipated and defined.
• In exceptional circumstances when broad delegated powers are necessary, they should be constrained as far as is possible and in most cases should be subject to sunset clauses.
• Creating criminal offences and establishing and empowering public bodies by delegated powers is "in general constitutionally unacceptable. Nor should delegated powers be used to change in any significant way the category of a criminal offence or to increase the level of punishment applicable to any criminal offence beyond a maximum penalty, which should always be stated on the face of any bill."

Devolution

• It is "regrettable" that legislative consent was not achieved for many Brexit bills.
• "The UK and devolved governments should work to establish healthy cooperation and mutual respect in order to secure consent for the Brexit bills that are still to come."
• The committee recommends that powers for UK ministers to make delegated legislation in devolved areas should include a requirement either to consult devolved ministers or to seek their consent. The more significant the power, the greater the need for consent to be sought.

Departures from European Union Court of Justice (CJEU) case law

• The committee concludes it was "inappropriate" to grant broad ministerial powers in the European Union (Withdrawal Agreement) Act 2020 to determine which courts may depart from CJEU case law, and to give interpretive direction in relation to the meaning of retained EU law.
• "There is a significant risk that the use of this ministerial power could undermine legal certainty and increase the challenge for the courts when dealing with retained EU law," the committee says.
• The committee recommends that the Government now publish in draft any regulations it intends to make using the power to direct courts on how to depart from EU case law to ensure that substantive consultation can take place.