Ministers Should Not Abuse Brexit Law Changing Powers

“This repeal bill is the start of the mammoth task of transposing EU law on to the UK statute books,” Chair of the Bar Andrew Langdon QC said of the European Union (Withdrawal) Bill, published last week.

“Not only is this a vast undertaking, it throws up some important constitutional questions, such as the extent to which Government Ministers should be able to re-shape the law without scrutiny by Parliament.”

Transposing EU legislation to UK law is complicated by the fact that some EU laws and directives relate to the powers of EU agencies which will no longer have authority in the UK, so they will need to be amended accordingly. Where such laws need amending rather than simply transposing, the European Union (Withdrawal) Bill gives Government Ministers the power to do so using secondary legislation, which does not require full parliamentary scrutiny.

Andrew Langdon QC said: “Where Ministers are given the power to make secondary legislation, this should be limited to technical amendments and should not be used to make substantive changes in policy, which should be made only by primary legislation, subject to full parliamentary scrutiny.

“The Government appears to have taken on board the concerns raised by the Bar Council and others. Following a white paper earlier this year, Section 7 of the Bill provides a more detailed criteria for the ways in which Ministers will be able to use their law-making powers. Ministers may not, for example, use secondary legislation to create a criminal offence or to increase taxation.

“The Bar Council will be looking closely at the Bill, including how it addresses the status of repatriated EU legislation, the role of the CJEU and the EU charter of fundamental rights.

“For example, there remain some big questions as to how the Government will stick to its commitment to pull away from the jurisdiction of the European Court of Justice without jeopardising deals that could benefit the economy. Under the proposed Withdrawal Agreement, government, citizens and businesses on both sides of the Channel will need some way to obtain a definitive ruling on interpretation, and an alternative to the CJEU has not yet been articulated by the Government.”

(Source: The Bar Council)