25 October 2017. By Matthew Holehouse.
When it comes to its Brexit legislation, the British government faces two tests: shepherding it through Parliament, then keeping it out of the courts.
UK ministers are pushing to get the EU (Withdrawal) Bill, the laws that will grant the executive sweeping powers to amend the country's statute book for Brexit day, enacted in time for the UK's exit from the bloc in March 2019.
But lawmakers alarmed at the accumulation of executive powers have so far proposed 331 amendments to the bill to rein in ministers' reach and ensure tighter scrutiny for changes to the law.
The government sympathizes with lawmakers' concerns, but it also sees a risk: if ministers' powers are more narrowly defined, it is more likely that a judge might reverse decisions later on.
English law recognizes both primary legislation, created by lawmakers and published as acts of Parliament, and secondary legislation, more specific laws and regulations created by the government or other agencies under powers delegated from the primary legislation.
Claimants can bring court challenges to overturn secondary legislation, typically because a minister has exceeded the powers granted by the original act or because an incorrect procedure was followed in creating the secondary legislation.
The Brexit legislation could be challenged on both these grounds, resulting in even greater uncertainty for business.
Scope of powers
The EU (Withdrawal) Bill allows ministers to do three things: Amend "retained" EU law so that it operates properly after exit day; make amendments in domestic law to ensure the UK still complies with international agreements; and to make any changes necessary to implement the country's exit agreement with the EU.
These changes could mean transferring powers currently in the hands of the European Commission to a British minister, or approving amendments to an international aviation treaty, or approving at speed new product licenses.
Up to 1,000 pieces of secondary legislation will be needed to prepare the UK's statute book alone, ministers say.
The power to correct primary legislation can be deployed wherever necessary to ensure the law "operates effectively," or to correct "any other deficiency" which a minister "deems appropriate," the draft legislation reads.
Domestic law can be amended "as ministers consider appropriate" to prevent "any breach" in international agreements.
Cross-party groups of senior lawmakers want to limit these powers. Proposed amendments include restricting such powers to where they are "essential," or "proportionate to the policy objective," when they are "not of constitutional significance" and "strike a fair balance between the public interest and the interests of the person adversely affected."
Lawmakers have also proposed that ministers shouldn't be able to weaken environmental and labor standards or non-discrimination legislation.
Such amendments could become a tripwire for ministers, Richard Ekins, associate professor of law at Oxford University, told Parliament's Exiting the European Union Committee on Oct. 11.
"There is a good reason for the breadth of the powers," Ekins said. "If you place too many restrictions on the scope of the power, then those restrictions are capable of being challenged in court."
"You would raise the risk of judicial challenge quite sharply if you introduced a distinction of along the lines of saying this must be a technical change not a substantive change," because the distinction between the two would be highly subjective, he said.
Stipulating that ministers can only make "necessary" changes would "sharply increase the risk of challenge," said Stephen Laws, a former head of the UK government's legal drafting unit. "The powers should be framed in in a way so as not to unnecessarily give handles to challenges."
A second type of legal challenge could arise over how minsters handle statutory instruments in parliament.
The most sensitive questions — such as creating new fee-raising powers, or creating new public agencies — would be handled under the "affirmative procedure," meaning a resolution of both the lower and upper houses of Parliament is required to pass them. Other changes would automatically become law unless lawmakers object, under a process called negative procedure.
Lawmakers want to enhance their capacity to scrutinize these powers. Dominic Grieve, a former attorney general and lawmaker, has suggested amendments that allow committees of lawmakers to pick out and debate more fully certain changes.
"My concern is to try to avoid things ending up in court," Grieve told lawmakers at a hearing of the House of Commons Procedure Committee on Oct. 11. A new committee to sift through legislation means "Parliament can show it debated the things that needed to be debated."
Such an approach also carries risks, however. Normally, courts don't examine Parliament's procedural rules when considering a lawsuit against a piece of legislation.
But if lawmakers set those procedures down in primary legislation, they could create further grounds for a legal challenge if they aren't subsequently followed, warned House of Commons Clerk David Natzler in a submission to lawmakers.
Andrea Leadsom, the minister responsible for delivering the withdrawal bill and Leader of the House of Commons, Parliament's lower chamber, agreed.
She said the government was sympathetic to lawmakers' concerns. A climbdown that in part accepts Grieve's proposals was likely, but there are risks in enshrining the procedure in law, she told an Oct. 18 hearing of the House of Commons Procedure Committee.
"One of the challenges of putting parliamentary proceedings on to the face of a bill is that it then becomes open for the courts to challenge or to have an opinion on it — and it is not necessarily something that Parliament would want," Leadsom said.