COVID-19 no excuse for ignoring constitutional challenges of Brexit – Lords committee
Delivering Brexit should not involve the creation of delegated powers for “executive convenience” rather than to tackle specific policy challenges, according to a House of Lords Constitution Committee report published today (9 June).
The committee say that “COVID-19 must not blind us to the challenges that Parliament will face in its scrutiny of Brexit” and that it places into “sharp focus the inadequacies of Parliament's capacity hold the Government to account.”
In 'Brexit legislation: constitutional issues' the committee highlights concerns and makes recommendations in key areas, including:
- 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.”
- 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.