JUSTICE has produced a Second Reading briefing on the European Union (Withdrawal) Bill 2017-19. There are four areas of concern for us in the drafting of the Bill and presumptions raised in it, borne out of one overarching difficulty. While we accept that legislating for exit is a monumental task, and this Bill is attempting to find a path through this, we nevertheless consider that more can be done to ensure that Parliament has full scrutiny over the transition:
I. There is far too much resort to delegated powers in the Bill. While the Referendum on Exiting the EU did not reveal specific reasons for the decision to leave, it is widely accepted that, rightly or wrongly, those in the Leave campaign were unhappy with the amount of decision-making by the EU affecting British people without the scrutiny of the UK and devolved parliaments. This Bill enables Ministers of the Crown to legislate for potentially huge changes to our law through secondary legislation, which cannot hope to have the level of scrutiny by Parliament required for such significant change. A better balance must be struck between those amendments that will require primary legislation and what can be handled through secondary legislation.
II. Preservation of acquired fundamental rights. The EU acquis of law has enabled, over many years, the development and recognition of certain fundamental rights, which are now the rights of UK citizens. The Bill converts these rights into domestic law on exit day in clause 4. However, the delegated powers created by the Bill can also remove these substantive rights through a ‘correcting power’. The Bill provides certain exceptions to the application of these delegated powers. These include not amending or repealing the Human Rights Act and its consequential subordinate legislation. However, the fundamental rights created by EU law are not given any preservation mechanism by the Bill.
III. The loss of reciprocal justice arrangements and procedures. As an organisation that exists to strengthen the UK justice system, we are aware that there are many EU instruments that enable justice processes to take place – from the European arrest warrant, through mutual enforcement and recognition of judgments, to the allocation of responsibility for processing the claims of asylum seekers who have entered the EU through other member states. These all need reciprocal agreements, and in some cases pan-European authorities, to administer them successfully. Government must not simply use a correcting power to delete these, but rather ensure that these, or equivalent arrangements, are preserved.
IV. The interpretation of EU law following exit day. Greater guidance must be given to the superior courts on how to exercise this role and on how to address disagreement as to interpretation in the reciprocal agreements that follow exit.
The Bill was introduced to the House of Commons and given its First Reading on Thursday 13 July 2017. MPs will next consider the Bill at Second Reading on Thursday 7 and Monday 11 September 2017.
JUSTICE briefing on EU Withdrawal Bill (Second Stage) – September 2017