My Lords, I do not wish to speak on the pros and cons of Brexit. I will say a few words about the concerns raised by the Constitution Committee, which I now have the privilege of chairing, because, whatever our personal views on Brexit, we must as a House fulfil our constitutional responsibilities to try to make this legislation fit for purpose, even if we disagree with the purpose.
I remind the House that following the result of the referendum the Constitution Committee, then chaired by the noble Lord, Lord Lang, took the unusual step of publishing a report that anticipated some of the problems that would arise in legislating in this area. The committee realised at that very early stage that there would be significant challenges for the Government and Parliament as a whole.
Following the publication of the European Union (Withdrawal) Bill, the committee produced an interim report in September last year looking at how far the Government had taken on board the concerns that had been raised pre-publication of the Bill. The committee was disappointed, to put it mildly, that the Government had not really listened to our earlier concerns. Indeed, had they done so, many of the problems that this legislation presents would not now be so difficult. Following that interim report, the Constitution Committee took evidence on the detailed and specific provisions in the Bill. Yesterday we published a report that goes through the Bill in great detail and highlights the significant—indeed, fundamental—flaws of a constitutional nature that we believe still exist and should be of concern to the whole House.
Our major and most significant concerns are threefold. First, there is the issue of legal certainty. We conclude that the Bill risks fundamentally undermining legal certainty in this country, a view that is shared by some of the most senior judicial experts. That is a very serious matter. Secondly, we are concerned about Parliament’s ability to fulfil our constitutional responsibilities in holding the Government to account and scrutinising all the legislative changes that are being proposed, especially when Ministers are seeking such broad delegated powers. Thirdly, we have concerns about the potential risk to the current devolution settlements that could result from the Bill, as the noble and learned Lord, Lord Hope, has outlined. Amendments in all these areas will be key to making the legislation fit for purpose, which is what the noble Baroness the Leader of the House hopes we will do.
I believe that changes and amendments are essential. The committee did not just criticise the Government’s Bill; we made specific recommendations as to how these problems could be addressed. We have sought to be constructive and to propose changes that will help to make the Bill fit for purpose and that do not undermine the Government’s intentions.
Our first proposal is to give greater clarity and certainty to the retained EU law that the Bill would create. We believe that we should give all relevant existing EU law the status of primary legislation, deemed to be enacted on exit day. This would mean that such laws would have a clear legal status in relation to other domestic law. Moreover, and importantly, it could then be amended only by Parliament. Such a move would be consistent with the doctrine of parliamentary sovereignty.
On our second concern, about the additional powers going to Ministers and the scrutiny of delegated legislation, we took evidence from the Government. I heard what the noble Baroness the Leader of the House said today, but we need more than just the committee structure that she was outlining. We have made some suggestions that are significant and would help. For example, we have suggested that Ministers must give good reasons for making changes by regulation, not simply judge for themselves that it is “appropriate” to make such changes. We recently had amendments to the Sanctions and Anti-Money Laundering Bill of that nature and I hope the Government will consider similar changes here. We also propose something constructive when we say that Ministers should have to personally certify whether new SIs contain any policy changes, so that we have maximum clarity on what we are considering.
I must say a word about the problems surrounding the Government’s relationship with the devolved assemblies. The noble Baroness the Leader said that progress was being made, but we were told that, when the Bill was in another place, amendments to Clause 11 were promised but not delivered. As the noble and learned Lord, Lord Hope, said, there are significant potential consequences. If the transfer of powers and competences from the EU to the appropriate Administrations does not take place smoothly, we could have a constitutional crisis. It is important that the Government realise that they cannot simply impose a settlement. The devolved authorities must be involved as partners in this.
I have focused my remarks on the need to make this Bill a piece of legislation that can function properly, because I believe, and my committee believes, that it is our constitutional responsibility to make all legislation fit for purpose. However, significant amendments are required if we are to achieve that.