Many of the powers in Brexit
legislation were too broad and in many cases the Government was
not clear enough about how they would be used, a group of Peers
has said.
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
-
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.
Notes to
editor
-
The House of
Lords Constitution Committee, chaired
by , examines all
public bills for constitutional implications and investigates
broad constitutional issues.
-
The Committee is currently undertaking
an inquiry on the constitutional implications of COVID-19. More
information is at: https://committees.parliament.uk/work/298/constitutional-implications-of-covid19/
