When Britain joined the European Economic Community in 1973 along with Ireland and Denmark, it marked the first enlargement of what we today call the European Union. Since 1973, the club of the nine members has become a union of 28 member states. Most importantly, the law of the EU has developed significantly in terms of validity, scope and substance. What we were studied in the law school with EU law was in essence the institutions, the processes and the tools that are available for the European integration. And in fact EU law has achieved a remarkable degree of integration in some areas such as the Eurozone and the internal market. However, with Brexit, a new chapter is in the writing, this time on the withdrawal from the EU.
A constitutional pathology
The withdrawal of the United Kingdom from the European Union after 44 years poses unprecedented legal challenges but provides useful lessons for the withdrawal process. Until today, this issue was a footnote in the textbooks, with the case of Greenland (which left in 1985) being the only precedent. Greenland joined the European Economic Community in 1973 with Denmark, then gained its autonomy (home rule) from Denmark in 1979 and in a referendum that took place in 1982, 53% percent of the population voted in favour of leaving the European Community. But it is beyond doubt that the exit of Greenland was much less complex, with the main topic for negotiation being the fishing industry.
The complex negotiation between the UK and EU is ongoing, but it is clear that the exit of the UK will be a much more burdensome process. EU secondary legislation and EU-related legislation is evident across the whole spectrum of the UK statute books. In terms of numbers, it is estimated that “13.2% of UK primary and secondary legislation enacted between 1993 and 2004 was EU related”.
Undoubtedly, this process sets an unprecedented challenge to the law-making institutions. In principle, ordinary law-making procedures are not designed with the capacity to amend voluminous provisions within the very tight timetable of the anticipated two year period for the exit process. In other words, these extraordinary conditions, in combination with the feeling of urgency and time pressure, put the Brexit process at the penumbra of constitutional normality, perhaps even tipping into the area of constitutional pathology.
Delegation of power to ministers
Since the activation of article 50 of the Treaty on European Union (TEU) in March 2017, the UK Government has tabled in Parliament the European Union (Withdrawal) Bill – an elephantine law, to repeal on the one hand the European Communities Act and on the other hand to transpose the EU secondary legislation – regulations and directives already enforceable in the UK – into domestic laws and to implement the withdrawal agreement.
The proposed solution in the European Union (Withdrawal) Bill for the problem of how to handle and materialise the process of Brexit is the well-established mechanism of delegation to the executive. It is evident that the executive, due to its expertise, is placed in a better position to accomplish the process of Brexit in a more efficient way. But the powers under this Bill are wide. In particular, a plethora of clauses creates a set of delegated powers to enable ministers to amend the statute book. This is the so-called ‘Henry VIII power’.
Some of the proposed delegated powers involve the following:
- Clause 7 of the Bill contains a general delegated power to deal with deficiencies in the law arising from withdrawal in order to amend secondary legislation that incorporates EU legislation, e.g. changing the term “EU law” to “national law” on the statute books.
- Clause 8 contains a more specific delegated power to amend existing regulations based on the new international obligations after Brexit, for instance the application of tariffs according to the World Trade Organisation principles.
- Clause 9 contains a broad power to enact laws for the implementation of the withdrawal agreement, for instance in relation with the border in Northern Ireland (which might require amendment to the Northern Ireland Act).
However such vast delegation of powers entails constitutional risks. The executive branch as an institution is vested with a different role to the legislature and has considerations and priorities that do not always match those of a representative and non-homogeneous body like Parliament.
In a recent report published by the House of Lords Select Committee on the Constitution, a number of proposal are suggested to tailor and make more precise the scope of the delegated powers. For instance, it is suggested that the scope of the delegated power of ministers to deal with deficiencies in retained EU law (clause 7) should concern the “necessary” regulations rather than the “appropriate”. In practice the term “appropriate” is a more subjective term which leaves more room for discretion to the ministers, while the term “necessary” is more objective and limits the options only to what was required. Under this proposed revision, the delegated power would be liable to be more strictly scrutinised by judicial review.
Legal Safeguards: Sunset Clauses and the review of statutory instruments
The Bill also involves the use of important sunset clauses. In essence, sunset clauses are statutory provisions providing that the delegated power will expire automatically on a prescribed date, unless it is re-authorised by the legislature. For example, the power to implement the withdrawal agreement (clause 9) is broad, but the Bill as drafted seeks to fetter this discretion at paragraph 4, which states that “No regulations may be made under this section after exit day”.
Around the world, it is a very common practice is to limit delegated powers by means of sunset clauses. These can be the appropriate apparatus to allow wide powers and simultaneously enhance legislative oversight during the whole process. In practice, the benefits from the sunset clause in the European Union (Withdrawal) Bill are twofold. First, this clause sets the timetable for the whole process of the transposition of EU secondary legislation into domestic laws, which advances legal certainty. Secondly, such clause, like an alarm clock, creates the incentive for comprehensive legislative evaluation of the delegated powers, which ought to minimize the risks of abuse of such powers.
However, in this case the broad scope of the Henry VIII powers means that sunset clauses are not an efficient safeguard. The theoretical benefit from the use of sunset clauses in relation to delegation of powers is neutralized when the sunset clause is also subject to Henry VIII powers. This is because the Henry VIII power can be used to undermine the sunset clause. In other words, the expiry of the delegated power can be altered by the very minister whom it purportedly binds. In practice, the minister might renew the law indefinitely. As a consequence, there is no guaranteed expiration date for the delegated power.
For example, clause 9 of the European Union (Withdrawal) Bill on the implementation of the withdrawal agreement delegates the wide power to the executive to “amend the Act” (including the sunset provisions). In reality, therefore, Parliamentary procedures are circumvented and Parliament is deprived of its constitutional role in the separation of powers.
Another safeguard which must be examined is the scrutiny of the statutory instruments adopted using these Henry VIII powers. The process of legislative scrutiny of the Henry VIII powers is prescribed by the Statutory Instruments Act 1946, which has been well explained by Jack Simson Caird. Essentially, legislation adopted according to ministerial Henry VIII powers is adopted according to the process for the enactment of statutory instruments. The most important aspect of this is that when such laws are laid before Parliament a special procedure must be followed in order to allow the appropriate time for their examination. But this falls well short of the process of scrutiny for a Bill through Parliament, where MPs play a far greater role and much more time is devoted to reviewing each provision. Hence, the process of scrutiny of the statutory instruments will be much less rigorous.
The UK Government is expected to reverse 44 years of integration, withdraw from the European Union within two years, and repeal or amend thousands of provisions through one Parliamentary statute. It seeks to do this using delegated powers and it is an interesting paradox that this gives rise to a situation where a minority government which depends on the support of a minor party to ensure a weak majority in the House of Commons seeks vast new powers.
But it is suggested that these powers are too broad and the legal safeguards are not sufficient to guard against the constitutional risks. The most severe risk is that a government with limited popularity and weak support in Parliament may proceed in implementing a legislative agenda via the Henry VIII powers.
It is therefore important to consider whether the two political safeguards which are in place to balance the relationship between the executive and the legislature will be able to address this problem.
The first safeguard is the House of Commons. The outcome of the recent general election has produced a hung Parliament. This means there is a weak government and a strong House of Commons, as the use of the party whip is not necessarily enough to pass legislation. As a result, that more consensus is needed between political parties for legislative enactments. This is a check on the power of the government.
The second safeguard is the House of Lords. In general, this is the branch with the less political legitimacy (as the peers are unelected) and as a result it has much less power to prevent legislation. But in the Brexit situation its role is enhanced. The two year period for withdrawal means that time is tight. The Lords’ power to delay Bills for up to a year may in practice have the force of an absolute veto.
That said, Brexit places such strain on the constitution that it could be appropriately described as creating a period of constitutional pathology. In a time such as this, there is a need for more consensus among constitutional actors and more stringent checks and balances. Under the proposed Bill, the safeguards surrounding the Henry VIII powers seem inadequate. It remains to be seen whether the political checks of a hung Parliament, in combination with the advanced role of the House of Lords, will be able to improve them.
Antonios Kouroutakis is an Assistant Professor at IE University, Madrid. His research interests lie mainly in the field of constitutional and administrative law, particularly the separation of powers and the rule of law, emergency legislation, immigration law and regulation of new technologies.
 Jack Simson Caird, Legislating for Brexit: the Great Repeal Bill, Briefing Paper No 7793 (House of Commons Library) 5 [http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7793]
 See: Select Committee on the Constitution European Union (Withdrawal) Bill 9th Report of Session 2017-19 – published 29 January 2018 – HL Paper 69 https://publications.parliament.uk/pa/ld201719/ldselect/ldconst/69/6911.htm#_idTextAnchor088
 see The European Union (Withdrawal) Bill, Briefing Paper No. 8079 House of Commons Library 87