Why you should care how Tertiary Legislation – the complete opposite of ‘taking back control’ – is hidden within the EU Withdrawal Bill

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November 13, 2017 by Paul Goldsmith

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I am going to explain how Clause 7 of the EU Withdrawal Bill this week takes away control from Parliament and hands it to the Government, and to unelected public bodies in a way that nobody voted for on June 23rd 2016.

In particular, the clause creates the opportunity for the Government to ‘legislatively sub-delegate’ – in other words create tertiary legislation. Once you understand what tertiary legislation is, you’ll see why anyone who cares about our constitition should be willing Parliament on this week as the Bill is debated in the House, starting tomorrow.

At the end of September, the Delegated Powers and Regulatory Reform committee of the House of Lords published a report (click here) in which they scrutinised the EU Withdrawal Bill, which is back being debated by MPs tomorrow. They were alarmed by much of what they found, especially when they realised that tertiary legislation was going to be allowed.

Clause 7 of the EU Withdrawal  allows Ministers by regulations to make such provision as they consider appropriate to deal with situations where retained EU law fails to operate effecitively or becomes deficient as the UK has withdrawn from the EU. This can be required on a number of occasions:

  • Retained EU law can become redundant (relating to European Parliamentary elections).
  • Functions have to be transferred from an EU entity (eg. the European Air Safety Authority) to a national body (eg. the Civil Aviation Authority).
  • Reciprocal arrangements between the UK and EU will no longer exist.
  • There are no functions or restrictions in an EU directive appropriate to retain.
  • It contains EU references which are no longer appropriate

Put simply, the way this clause is problematic for its width, novelty and uncertainty. It doesn’t say who gets to decide whether a regulation or law falls into one of the above categories. It doesn’t say what level of deficiency allows the Government to operate this power. The committee also noted that there had been a vital change in wording between the White paper in March and the Withdrawal Bill itself in September.

In March it said –  the “Great Repeal Bill will provide a power to correct the statute book, where necessary, to rectify problems occurring as a
consequence of leaving the EU”. In September the actual wording at the start of Clause 7 read – “A Minister of the Crown may by regulations make such provision as theMinister considers appropriate to prevent, remedy or mitigate…“.

This distinction is vital. The Lords Committee provides two examples of how so:

  1. EU Regulation No. 883/2004 talks of how benefits move when a person moves. It allows Britons to move to Spain and still receive their pension for instance. As it is written, the EU Withdrawal Bill could designate this under Clause 7 and say it is ‘appropriate’ (because it wouldn’t be neccessary) for ministers to rewrite it – stopping benefits being exported or EU citizens claiming benefits here, and Parliament could do nothing about it as it would be ‘secondary legislation’, so the Government can change the law.
  2. Then there is the EU General Data Protection Regulation, which grants all EU citizens the right to see information held on them subject to security reasons. Clause 7 as written could allow Ministers to see it as ‘appropriate’ not to allow EU citizens in the UK to see immigration information held on them by the Home Office. This wouldn’t be necessary, but Clause 7 doesn’t require that.

The Lords Committee (who have certainly served their scrutinous purpose!) now dig deeper into a memorandum published back in July to accompany the upcoming bill to reveal the power that would be created to allow “legislative sub-delegation”. That is to say, regulationsunder clause 7 may allow people or bodies, including Ministers themselves,to make legislation without there necessarily being any parliamentary procedure.

The Delegated Powers and Regulatory Reform committee goes on to explain that “it could allow where it is appropriate for powers to be conferred independently of political control. For example, conferring powers on a regulator to set standards. However, there is nothing in the Bill that limits the power in this way. It could be used for any purpose for which regulations may be made under clause 7. It could, for example, be used to create new bodies with wide powers to legislate in one of the many areas currently governed by EU law, including aviation, banking, investment services, chemicals and medicines. The regulations might also contain only skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament, or even by Ministers, but by one of the new bodies socreated.”

Let me just be clear what this means. With no time limit, the Government can delegate powers to outside agencies who can make laws and rules that govern us. So, despite saying that for the first time almost half-a-century we will be able to vote for the people who make our laws, the EU Withdrawal Bill, unamended, will take power even further away from the people than it was before (because an argument could be made that we had some input into who was in the European Parliament, who appointed commissioners, and who was on the EU council).

Now, hardline Brexiters, and people who don’t understand parliamentary procedure, or accept the sovereignty of parliament over the people, will tell you that anyone who opposes the EU Withdrawal bill, which legislates for the process by which the UK leaves the EU,  is an ‘enemy of the people’.

But hardline Brexiters should be reminded that we are a parliamentary democracy, and when they suggested we ‘take back control’ of our sovereignty, that sovereignty, under our constitution, rests with Parliament (the legislature – which makes our laws).

The Bill as it stands, unamended, would take that sovereignty away and put it in the hands of the Government (the executive). This is not what Brexit was supposed to be about. Hardline Brexiters should then be reminded that putting the power to make rules, regulations and laws in the way that the so-called ‘Henry VIII’ powers under Clause 7 of the Bill do may be ‘OK’ in the hands of Theresa May’s government. But they may not be government for long. As I have always said, only make a law or rule or regulation that you don’t mind seeing in the hands of your opponents, or it can be used against you.

The Government argues, in that July 2017 Delegated powers memorandum that the width, novelty and uncertainty of these arrangements are necessary to take into account every possible outcome of the negotiations that are going on and be able to react at speed to the eventual outcome. They say we have nothing to worry about. Well they would, wouldn’t they?

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