Lords warn that Brexit challenges have not disappeared during coronavirus (COVID-19)

Lords warn that Brexit challenges have not disappeared during coronavirus (COVID-19)

The House of Lords Select Committee on the Constitution (Constitution Committee) has published a report on the continuing constitutional issues and legislative challenges of delivering Brexit. The Constitution Committee notes that the coronavirus (COVID-19) pandemic has ‘monopolised national and international attention’, but the issues surrounding Brexit remain and must be dealt with. The Constitution Committee has made recommendations in areas of delegated powers, devolution and departure from the EU Court of Justice (CJEU).

Key recommendations of the report include:

• delegated powers should only be sought when they can be clearly anticipated and defined

• if broad delegated powers are necessary, they should be constrained as far as possible and in most cases should be subject to sunset clauses

• creating or significantly amending criminal offences and establishing and empowering public bodies by delegated powers is generally constitutionally unacceptable

• the UK and devolved governments should co-operate effectively to reach consent for future Brexit related bills

• powers for UK ministers to make delegated legislation in devolved areas should include a requirement to consult devolved ministers or to obtain their consent

• broad ministerial powers in the European Union (Withdrawal Agreement) Act 2020 to determine which courts may depart from CJEU case law and to interpret the meaning of retained EU law should not have been granted as ‘use of this ministerial power could undermine legal certainty’

• the government should publish any regulations it intends to make directing courts on how to depart from EU case law in draft to ensure that substantive consultation can take place

Source: COVID-19 no excuse for ignoring the constitutional challenges of Brexit

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