The European Union (Withdrawal) Bill: clause 7 “the correcting power”

The EUW Bill contains a number of delegated powers for Ministers to make secondary legislation in order to prepare the statute book for the UK’s withdrawal from the European Union. This paper covers one of these powers:

• clause 7: a power to make regulations in order to prevent, remedy or mitigate any “failure of” or “deficiency in” retained EU law.

The Commons Library Briefing, the European Union (Withdrawal) Bill: scrutiny of secondary legislation (Schedule 7), addresses schedule 7 of the EUW Bill, which will be debated on day 7 of the Committee Stage.

The Commons Library Briefing, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill.

Delegated powers to make secondary legislation are central to the Government’s strategy in legislating for Brexit. Delegated powers to make regulations are an established feature of legislative practice in the UK. While Parliament regularly grants delegated powers to successive governments, it has often closely scrutinised, and imposed limits upon, these powers, particularly when they enable changes to primary legislation in significant policy areas.

Debate on the powers in the EUW Bill has focused upon how the powers are framed, both in terms of the purpose and circumstances in which they can be used, and in terms of the nature of the legal changes they can be used to achieve. The House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) has described them as “excessively wide” and “unique in peace-time”.[1] The House of Lords Select Committee on the Constitution has said that the EUW Bill “weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”.[2]

Clause 7 represents the Government’s request for Parliament to delegate legislative power to change the statute book so that retained EU law functions effectively after exit day. The Government’s case for delegating this power, rather than using primary legislation, is based on the uncertainty over what changes will be needed, the volume of changes required, the speed at which they will need to be made, and the technical nature of many of the alterations that will be needed to retained EU law.

Clauses 2, 3 and 4 of the EUW Bill preserve and convert large amounts of legislation constructed and conceived to operate in the legal systems of Members States of the European Union. A significant amount of this legislation, which will form a new category of domestic law, known as “retained EU law”, will need to be corrected so that it can operate effectively after the UK leaves the EU.

The clause 7 power is designed to enable Ministers to use secondary legislation to “prevent, remedy or mitigate” deficiencies in retained EU law arising from the UK’s withdrawal. The power can be used when a Minister considers that secondary legislation is an “appropriate” solution to a deficiency. The power is limited by some significant legal constraints and subject to parliamentary oversight.

The extent to which “corrections” will need to be made before exit day will likely depend on the form of Brexit agreed. Central to the Government’s case for claiming powers is that it needs to have the ability to react swiftly, and to change a large range of legislation, in order to respond to the outcome of the negotiations with the EU.

When considering the scope of the powers in this Bill it is important to note that other Brexit Bills, including in specific policy areas, such as immigration, could also contain delegated powers. These powers will likely enable changes to be made retained EU law, the body of law created by the EUW Bill, in order to allow the law to be changed in the specific policy area covered by the Bill in question (eg clause 2 of the Trade Bill). By exit day, it is likely that the statute book will contain a web of different powers designed to enable ministers to implement Brexit. How these powers are framed is likely to influence how these powers interact, and which are used for particular legislative ends.

[1] House of Lords Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal Bill), (2017-2019 Third Report HL Paper 22) para 1

[2] House of Lords Select Committee on the Constitution, European Union (Withdrawal) Bill: interim report (2017-2019 Third Report HL Paper 19) p2