Delegated Powers and Law Reform Committee

Meeting date: Tuesday, September 26, 2017

Official Report 597KB pdf

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European Union (Withdrawal) Bill

Item 9 is a continuation of our evidence session on the European Union (Withdrawal) Bill. I welcome Professor Stephen Tierney, professor of constitutional theory at the University of Edinburgh. We will go through more or less the same questions that we asked our earlier witnesses, because Professor Tierney may well have a different take on them.

The bill confers wide powers on ministers of the United Kingdom and devolved Governments to correct retained EU law. Is the broad scope of those powers appropriate and necessary?

That is a difficult question. We need to preface the discussion by outlining how extremely extensive the powers set out in clauses 7 to 9 of the bill are. They give ministers delegated powers to correct deficiencies in retained EU law, which is a very broad category in itself, and they also contain broad Henry VIII powers that allow deficiencies to be corrected by amending primary legislation.

Are the powers appropriate and necessary? The UK Government justifies the powers in the delegated powers memorandum that accompanies the bill. It gives three reasons why the powers are necessary. The first is that the Government estimates that there are more than 12,000 EU regulations and more than 6,000 EU directives in force across the EU, so the first reason is simply that in order to address the issue by exit day the Government requires latitude. Secondly, as a matter of practicality, it is not necessary to make all the changes in the bill. The bill could not possibly either remove or transpose all those regulations and directives; that will have to be done after the bill. The third reason is the need for flexibility. We are in the middle of Brexit negotiations at this precise moment. There will also have to be a discussion between the UK Government and the devolved Administrations about how those powers that might be devolved are treated. For all those reasons the third justification for the powers is the need for flexibility.

That is a plausible argument. The UK Government, as a generality in this situation, can plausibly make the argument that, if we are going to have Brexit—and one might think that Brexit is a terrible idea—the regulations and directives have to be dealt with, and it seems that the bill is a way to do it. I will also mention two other caveats. There are limitations on the use of the powers—we can come back to that, but it means that the powers are not unlimited—and they also carry sunset clauses, so they can be used only for a certain period of time.

I think that the powers are excessively broad, and as we drill down into some of the detail we will see that they are excessively broad. In just about any other statute, they would look astonishing but, given the context, it is hard to see another way to do it, although I think that the powers could be more tightly constrained than they are.

In what way could they be more tightly constrained?

One of the real difficulties is the fact that the powers are themselves contingent upon the most significant provision in the bill, which is the provision that retains EU law. That term is very broad and capacious. What is meant by “retained EU law” is set out in the early clauses of the bill and it is very broad indeed. We do not have to concern ourselves with a lot of the ambiguities in that term. What I am alluding to is the fact that the regulations powers, which are very broad, relate to a term that is itself unclear, and when a term is itself unclear, that invites the powers to be used in a very broad way. That is the first difficulty.

Clause 7 allows regulations to be made

“to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law”.

The terms “operate effectively” and “deficiency” are pretty broad. If we give a minister a power to correct any deficiency, in effect making it a subjective test for the minister to determine what “operate effectively” and “deficiency” mean, we are giving a very broad power. On that basis, I think that the powers operate broadly. More limitations could have been built in; the limitations in clause 7(6) are very narrow.

Another issue, which I presume that we will come on to discuss, is the extent to which there will be scrutiny. If we are going to give very broad powers to ministers, are powers also being given to Parliament—or Parliaments—to get time to look at how the powers are being used? It looks as though that will not be the case.

You talked about ambiguities. We talked earlier about the vagueness of the language; should it be tightened up?

My view of the bill might seem a little paradoxical. When I look at the powers, I can see that they are very, very broad and raise real constitutional concerns. However, when I ask myself how one would go about it in a different way, I find it difficult to come up with a concrete alternative that would, constitutionally, be better and that would make the process manageable, because we are talking about a very short period of time and a massive body of law that must be dealt with.

Moreover, it is a moveable feast as the UK negotiates with the EU. We do not know what shape proto-agreements will take as the UK moves towards exit day. For example, the UK cannot plan to get rid of a whole swathe of law if that law might be in the remit of a future trade deal and it would make sense to retain it. There might even be commitments to maintain EU law—there is now talk of a fairly lengthy transitional period, when the powers might not be used at all. It is therefore very difficult to see how the skeleton of the bill could be different from what it is.

Has your view of the bill changed?

My view of the bill has not changed. I think that there are ways in which it can be tightened up, but fundamentally it is very difficult to see how it could be done in a totally different way.

So when you first looked at it, you thought, “Whoa.”

It is not so much that my view of the bill has changed. The bill is deeply constitutionally problematic: the Government is taking to itself very broad powers to change the law through delegated powers, most often through negative procedure and often through Henry VIII powers—all that would be problematic in any other bill. The problem is not so much the bill as the project that the bill is having to serve. The bill is having to serve a massive constitutional change, which has to happen very quickly. The bill is deeply problematic, but that is almost an inevitable consequence of the process that it is serving.

You mentioned the transitional period. If there is to be a transitional period of two years, say, will it be important—or crucial—that all the laws are transposed into UK legislation before the period starts, or will the transitional period provide additional time to transpose the laws into UK law?

There would be two different ways of doing it. The transition deal could be accompanied by another piece of legislation that, in effect, continued the effect of EU law. That would be one way of doing it. That would involve going round the provisions of the European Union (Withdrawal) Bill and treating exit as if it were not in fact exit for that period of time, which would presumably be politically problematic for the UK Government.

If that is not the case and exit day is not only formally exit day but also the day on which EU law ceases to apply, the bill would carry on as it were and all the laws that would be kept under it would be retained. In that case, rather than a new piece of legislation being introduced, the delegated powers would simply not need to be used very much, except to carry out a block transfer of EU law into UK law as a going concern for the transition period. That would give parliamentarians and the UK Government much longer to plan for 2021—or whenever the period would end—as opposed to 2019. In that way, the rush that we envisage could be postponed.

There are two ways of doing it: one would be, in effect, not to leave the EU for two years; the other would be to leave the EU only symbolically for two years, in which case there would be an obligation to continue to be bound by EU law. In that scenario, Government ministers would probably come under the sort of constraints that the Scottish institutions come under at the moment—in other words, they would have to act in a way that was not incompatible with EU law. There would need to be some such provision at UK level.

That was helpful. Given that you mentioned the transition deal, I thought that I would ask that question.

The bill provides a choice of three legislative routes to exercising the powers of correction: regulations that are made by the UK ministers, regulations that are made by the devolved Administrations and regulations that are made jointly by the UK ministers and the devolved Administrations. What challenges do you think that having that choice of legislative routes will give rise to?

The UK has the general, unlimited plenary powers. The default will be its exercise of those powers in reserved areas—which is what we anticipate—but you are talking about its use of those powers in devolved areas.

I think that having those three routes is a very complicated arrangement. It would depend on whether there were attempts to use the first of those routes and why. If the UK were unilaterally to use delegated powers in devolved areas, there would be political questions to be asked about why that was the case, given that, on devolved matters, there are provisions in the bill for the joint making of delegated powers in devolved areas. That is similar to the section 30 procedure that exists under the Scotland Act 1998.

The first category and the third category are the two on which it will have to be worked out when the UK should act alone and when it should act in collaboration with the devolved Administrations. I imagine that the default would be to try to work co-operatively—under the principles of the devolution settlement, that ought to be the case.

The middle category is an interesting one. I assume that that is a reference to the powers that, under clause 10, the Scottish Parliament will continue to have to make delegated legislation in areas where it already has that power. We have been asking about that issue. As I understand it, the Scottish Parliament—or the Scottish Government—will acquire the power to continue to act in areas of EU law that are devolved at the moment and will be able to use the delegated powers in the bill to change EU law that is firmly within devolved competence for the purpose of correcting deficiencies and so on. I think that that is the least problematic aspect; more problematic would be the UK doing stuff unilaterally in devolved areas and how that would marry up with the shared delegated power making.

13:15  

When I posed that question to one of the earlier panels, they said that they would leave joint scrutiny aside. They consider it to be a non-starter, so it is interesting to hear your take on it.

In practice, that might be the case. The bill anticipates that the joint powers will mostly be used for the transfer of powers. To put it crudely, the bill envisages the UK transposing all EU law in devolved and reserved areas back into the UK box and then, by way of joint order making, gradually re-devolving it. That is what it envisages the joint powers typically being used for, so yes, one anticipates that the task of repatriating law will be done fairly unilaterally.

Would it be possible for two legislatures to pass valid but conflicting legislation in exercising the powers in the bill?

That is a very interesting question. This has always been a concern of mine from a practical point of view. The Scottish Parliament has competence in EU areas, so far as they are devolved. The bill guarantees that that will continue. The bill attempts to get around the potential problem by removing competence in retained EU law. It depends how broadly that is read, but that is a potentially very broad provision that restricts the power of devolved administrations to modify retained EU law. That seems to prevent the risk—or the opportunity, depending on how one approaches it—that you raise. That seems to be the purpose of the bill. I imagine that a court dealing with a competence dispute would probably read that as the purpose of sections 10 and 11.

There are limitations and restrictions on the correcting powers in schedule 2 that apply to devolved authorities but not to the UK ministers under their equivalent powers. Examples include a more limited power to sub-delegate than is available to UK ministers, and the requirement to obtain the consent of UK ministers in certain circumstances. Are those additional limitations on the Scottish ministers appropriate? What view do you take of the Scottish Government’s proposed amendments to remove those restrictions?

They are not hugely significant. One understands the UK’s approach here. I am aware that this is a delicate area, and I am not defending the overall approach of the bill, but it is what it is, and the UK Government has decided to do this by whole-scale transposition. That said, the bill could be more sensitive to devolution, and you allude to examples where there does not seem to be a pressing need for those sorts of fairly minor limitations. My sense is that they are probably unnecessary.

An overall theme that is far more important than the technicality of a lot of these provisions is the absolute need for healthy intergovernmental relations. I have talked about this before and people have said, “Well, it’s a truism.” Of course it is a truism, but it ought not to be forgotten. I say that because some of the more minor provisions that raise the hackles of people who feel that they are outside the spirit of devolved settlements are not conducive to reaching intergovernmental agreement on the bigger issues that really matter. I do not think that those minor provisions are particularly necessary, and they perhaps show an excessive lack of trust in devolved Administrations, which is not healthy.

IGR will come up later.

In exercising their powers, devolved authorities may not modify retained direct EU legislation or make provision inconsistent with any modification of retained direct EU legislation that is made by UK ministers. Do you foresee any difficulties with such restrictions?

That is the general gist of the bill. There is a body of retained EU law, which contains many sub-elements. In essence, that is either EU law that directly affects us, which is Brussels law that we will bring in, or EU law that has been made into UK law. All that is going to be given the status of retained EU law. The bill’s approach is that the devolved Administrations cannot amend that until it is sifted and what ought to be devolved is parcelled out.

Other approaches to the bill could have been used. I can see that way as a problem of principle, from a devolved perspective—I get that. It poses an invasion to devolution, as it is not congruent to our principles for devolution over nearly two decades. However, the approach that has been taken could potentially be corrected through the commitment in the Government’s explanatory notes to seek a rapid devolution of the powers. If that is done fully and consistently with existing devolved powers and a full commitment to parcel out the powers in line with the devolution settlement, the problem of principle can partly be overcome. That is how the bill stands and what will matter is how that position—and the powers related to it—plays out in practice.

There is no equivalent for devolved authorities of the power in clause 17 to make consequential or transitional provision. Would it be usual for a UK bill that is making provision within the Scottish Parliament’s legislative competence to confer such a power on Scottish ministers?

That might well be the case. One difficulty with the delegated powers in the bill is that there is power layered on power layered on power. By the time that we get to the consequential provision, we almost wonder why it is there; the other powers are so extensive that you wonder, “What on earth can be left that you have not already provided a power to do?” The provision seems to be a final catch-all power. Clause 10 and its relation to schedule 2 should be read as an all-encompassing power with regard to the power of the devolved authorities to do anything in relation to retained EU law that they can currently handle within devolved competence. My take on the exception that is built into clause 10 is that that would include transitional and consequential provisions. You might seek clarification with the bill team or the UK Parliament on whether, in so far as the Scottish Parliament still has powers in relation to retained EU law, those powers encompass consequential and transitional provisions. There is no reason in principle why they ought not to.

Good afternoon, Professor Tierney. The bill does not provide any mechanism for Scottish Parliament scrutiny of regulations made by UK ministers alone, irrespective of whether the regulations are a matter of significance for Scotland or would have attracted the benefit of the Sewel convention had the matter been included in primary legislation. Does that present a gap in the Parliament’s ability to scrutinise the exercise of the bill’s powers?

Scrutiny is a crucial issue. I spoke about the general problem of principle to which Stuart McMillan alluded—a block is moved to the UK and then redistributed—and how that can be corrected in a devolution-sensitive way. One of the crucial questions will be how closely the powers are scrutinised, particularly where—as you said—regulations are being made exclusively at UK level in areas that will affect devolved matters. I know that this Parliament and this committee are thinking carefully about how scrutiny moves forward. It really is a potential lacuna.

Do you have any thoughts on how we could fill that gap?

One big problem is that so much of the regulation process will be undertaken through negative procedure. The position that you highlight is constitutionally problematic, because the legislation will affect this Parliament but the process will be undertaken at Westminster. The practical problem is that it will happen very quickly: the legislation will be laid before Westminster and passed in a 21-day period unless there is the capacity in Parliament to look at it quickly. We simply do not know what sort of volume we are talking about, but it seems likely that it will be massive.

The issue of principle is itself problematic. Would there be a practical problem if the UK Parliament were to use the powers in a devolved area to modify retained EU law, presumably to bring matters into the purview of the retained EU law? After all, it would, even after those powers had been used, still be part of the vast body of law that would be subject to discussions about subsequent devolution of those areas. The problem of principle is significant, but it is not the end of the story.

With regard to what this Parliament could do, you need to think about the extent to which you have the resources to look at draft legislation in another chamber. It would be entirely constitutionally appropriate for this Parliament to look at that legislation, even if it cannot directly influence it.

Another option—I do not know how far it could go—would be interparliamentary co-operation, which seems to be an important theme as things move forward.

Is there a role for formal Scottish Parliament consultation on, or consent to, the exercise of powers by UK ministers? If so, should that role concern the exercise of powers that relate to matters within the Parliament’s legislative competence, or which would be within legislative competence notwithstanding the requirement of compatibility with EU law? Alternatively, should the role be wider and perhaps cover the exercise of powers in areas that are of interest and importance to Scotland? How would you define that?

You have rightly said that Sewel does not apply to delegated legislation, and we are now seeing just how big a deficit there is in terms of interparliamentary relations. It is not inconceivable, however, that new conventions could develop. That is how conventions emerge, although sometimes they are invented by politicians—Sewel was an invention to some extent.

In the explanatory notes and the delegated powers memorandum, the UK Government talks a great deal about the need for, and its commitment to, consent, without mentioning Sewel in relation to delegated powers. If it is serious about that, it is not inconceivable that practices could develop—and practices can become conventions—covering exactly the kind of avenues that you are talking about. The devolved Administrations could certainly press for that on the basis of constitutional principle. We do not have the right to veto the delegated legislation; if we passed a motion here, it would not fit within the Sewel convention. We understand all that, but let us talk about the idea of other conventions emerging.

13:30  

If we are seriously moving forward with Brexit, we are looking for a common approach across the UK, we are trying to build common frameworks, and we are trying to do this by consent, so let us think about avenues through which a semi-formal form of consent is required by the Scottish Parliament chamber and the other chambers for the use of delegated powers that are foursquare in devolved areas. That is a perfectly legitimate constitutional move to try to make.

Returning to scrutiny, does the bill have an appropriate split between matters that require the affirmative procedure and matters where there is a choice between the affirmative and the negative procedures?

To put it bluntly, no, it does not. The convener asked if I had changed my mind about the bill, and I think that you get worn down after a while. I still find it constitutionally problematic—there is no doubt about that. One really problematic area is the very limited range of matters for which affirmative procedure is expressly required. Given the vast swathes of policy areas that are involved, one would have expected a far broader use of affirmative procedure.

Once again, the other argument is simply the practical one that when you are talking about these many, many thousands of regulations and directives, it is very hard to see where the time could come from to lay each of them before Parliament for active affirmative consideration.

I know that that sounds a bit ambiguous. I do not think that the bill has an appropriate approach; on the other hand, I do not see how else it could be done. In a sense, the problem goes back to the project, not to the bill.

Does the bill give wide discretion over the choice of negative or affirmative procedure? If it does, is that discretion appropriate? How can ministers be held to account in respect of that choice?

Given that so little is set out as definitely requiring the use of the affirmative procedure, it is very open to ministers to decide on their approach. My sense is that if you give ministers a choice, they will use the negative procedure.

The other element that you have to build in is that there is a third scrutiny procedure: the made affirmative procedure, which is in effect a no scrutiny procedure that the minister can activate in a case of urgency. That is an innovation in the bill. It is an opportunity for ministers to make delegated legislation in pressing circumstances, which would become law without parliamentary scrutiny of any kind. Safeguards are built in to the procedure—the legislation would require to be reassessed within a month, and so on—but it is left entirely to the discretion of a minister to determine whether the circumstances are sufficiently urgent to require that procedure.

The bill vests enormous trust in ministers. It also vests enormous trust in the robustness of the ability of the UK Parliament in particular, but also other Parliaments, to follow very closely what ministers do with this stuff.

You have partially answered the question that I am about to ask but I will ask it anyway. Is there a role for strengthened scrutiny—for example, to enable Parliament to be consulted on regulations that are laid in draft prior to final regulations being laid? If so, which areas should be prioritised?

To some extent, that depends on what the powers are going to be used for. As I read it, the Government has committed itself to not use those powers to make significant policy changes. The idea is that the powers are just to correct deficiencies to make legislation fit for purpose in the act of bringing it into UK law.

Before the bill was even introduced, various Scottish and Westminster parliamentary committees put forward recommendations for heightened scrutiny procedures of the kind that you have talked about. Various innovations were recommended with provisions analogous to schedule 7 to the Scotland Act 1998, which lists delegated power-making procedures that involve the joint agreement of this Parliament and the UK Parliament—for example, the provisions in the Legislative and Regulatory Reform Act 2006 that set out extensive super-affirmative procedures. As I read it, the Government’s response is simply that there is not the time; we have to get the legislation done and such a procedure is not feasible because it would take too long.

A stronger suit to play would be to hold the Government to the promise that big policy will not be done with those powers; if big policy is to be made, primary legislation will be needed. The withdrawal bill will not be the only bill. It is the first, but there will be other bills in discrete areas of EU competence law. This Parliament’s time might be better spent targeting primary legislation on big matters of policy when full Westminster scrutiny and the Sewel convention will apply.

You have touched briefly on the super-affirmative process. Is that specifically allowed under the bill?

That procedure is not provided for in the bill. I find it funny and slightly odd that a Government can put forward a bill that tells Parliament how to scrutinise legislation. It has always been my view that Parliament might as well say to the parliamentary draftsmen, “Thank you very much; it is good of you to tell us how to do our job, but in fact, this is how we are going to scrutinise this.”

It is for people here to liaise with your parliamentary equivalents at Westminster on what kinds of procedures you want to see in the bill. If the Government drafts a bill, of course it will minimise the extent of its scrutiny. If there is a feasible argument that the super-affirmative procedure should apply in relation to matters that hit the devolved areas such as those that Ms Harris spoke about, the argument should be made through one Parliament talking to another and saying what amendments you want to be made to the bill.

What areas, or categories of changes to EU law, should this Parliament seek to prioritise in its scrutiny?

The priorities are areas that affect devolved matters—or is that just a given? The crucial stuff that we all know about—environment, agriculture, fisheries and so on—is very important. Having said that, the UK could be outside the EU just as devolved legislation is coming into force—the Scotland Act 2016 and the Wales Act 2017 are new—and a trite and obvious point is that we are in the middle of a lot of changes. We have not worked out the boundaries of the devolved reserved competence of the 2016 act, which includes shared powers between Scotland and the UK in many areas, from welfare to transport police to other areas of transport. Many reserved matters will impact on Scotland in ways in which they would not have done five years ago.

This Parliament should not just focus on traditional areas of devolved competence, but maybe think that although a reserved matter has gone back to Westminster, the UK could use a power in a way that affects things that are now at the margins of devolved reserved competence, such as welfare, transport or taxation. There will be new areas to look at in the light of the Scotland Act 2016 that have not yet been fully thought through.

As members do not have any other questions, I thank Professor Tierney for his time. The discussion has probably felt like a whistle-stop tour, but we have covered a lot of ground.

It has been a pleasure. Thank you.

Meeting closed at 13:40.