11 September 2017

The European Union (Withdrawal) Bill, formerly known as the (Great) Repeal Bill, is the Government’s first major legislative step in laying the legal foundation of the United Kingdom as it leaves the EU.

The Bill proposes to repeal the European Communities Act 1972 (ECA 1972), which brought the UK into the EU and served as a conduit for EU legislation, whilst simultaneously incorporating all pre-exit EU law into UK law on the date of departure. It creates powers for ministers to make secondary legislation to alter retained EU law and other parts of UK law, so that the Government can make the necessary adjustments to ensure this EU legislation continues to function as intended. Its final objective is to ‘maintain the scope of devolved decision making powers in areas currently governed by EU law.’

The Bill is necessary to preserve legal continuity and avoid creating holes in the statute book when the UK leaves. There are around 12,000 EU regulations in force, and Parliament has passed 7,900 statutory instruments implementing EU legislation. There is no real argument that the Bill is required and indeed the Labour party had an analogous proposal in their manifesto – the dispute is over how it works.

The Government sees the Bill’s provisions as essential to carrying out the unprecedented legal restructuring that Brexit involves. Labour has disputed this, saying that the Government are ‘keen to portray the Bill as a technical one – nothing could be further from the truth’.

The status of EU law post-Brexit

One highly important question regarding UK law post-Brexit is the status of EU law in UK courts. Brexiteers are concerned to limit the powers and influence of the European Court after the UK’s departure.

Clause 5(1) brings an end to the principle of the supremacy of EU law. However, subsection (2) provides that the principle does continue to apply after exit day, where a conflict arises between pre-exit domestic legislation and retained EU law.

Clause 6 sets out how pre-Brexit EU case law is to be interpreted in UK courts and how UK courts might consider future European Court case law. It provides that UK courts will no longer be bound by the European Court and need not (but may, if they wish to) have regard to anything done by it after UK withdrawal. The Bill gives all pre-exit EU judgments the same status as UK Supreme Court decisions – only the Supreme Court and Scotland’s High Court of the Justiciary (HCJ) are not bound by old European Court (ECJ) decisions. These two courts may depart from pre-exit ECJ judgments “where it appears right to do so”.

This has been criticised as unclear. The departing President of the UK Supreme Court (UKSC) Lord Neuberger has stated that “if [the government] doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit… then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair”. The lack of clarity stems from the Bill’s direction that judges “may” have regard to decisions when they consider it “appropriate”. This allows the judges a great amount of discretion, potentially making them political targets.

Henry VIII powers – a return to government by decree?

The Bill grants several ‘Henry VIII’ powers – allowing ministers to make laws through secondary legislation. Unlike Acts of Parliament, such legislation doesn’t necessarily require debate in the House, so laws can be passed much more quickly. This type of legislation is broadly agreed to be essential in carrying out an exercise as administratively complex and time-pressured as leaving the EU. (It is also the method by which thousands of EU laws have been implemented in the UK since the 1970s). However, concerns have been raised by MPs and commentators across the political spectrum about the breadth of the powers conferred by the Bill. Brexiters such as Owen Paterson, as well as others such as Anna Soubry and Sir Keir Starmer, have railed against their scope and potency.

When the powers were put forward in the Government’s White Paper, the House of Lords Constitutional Committee responded by writing that “We recognise that the existing [scrutiny] procedures may be appropriate for the vast majority of statutory instruments… Problems arise, however, when the matters being dealt with… go beyond merely technical or administrative changes”. Many are concerned that the powers granted will be used to put in place matters of policy, rather than to make essential amendments. The Committee suggested a sifting process, whereby a parliamentary committee considers each statutory instrument put forward and decides what level of scrutiny it deserves. However, the Government has (so far) ignored this recommendation.

The Government does now appear to concede that the Bill may need to be amended in Committee Stage to take account of these concerns. Whilst it is important that ministers have the practical means to affect the necessary changes to the statute book, some of the powers go beyond that. Clause 7 allows ministers to amend existing law if they think regulations are “appropriate” to prevent “failures” or “deficiencies” in retained EU law that arise from the UK leaving the EU. These terms are not defined, with only a non-exhaustive list of examples provided. The powers bequeathed can be used to do anything that could be done by an Act of Parliament, including, presumably, the ability to create further powers to delegate legislating.

Clause 9 gives ministers the power to implement a withdrawal agreement. This is controversial given that the Government has previously promised a vote in the House on this issue. Clause 17’s power is wider still – permitting a minister to make such regulations as are “considered appropriate in consequence of the Act”. This power extends to “modifying any provision made by or under an enactment”, including the Bill itself. Lord Pannick, writing in The Times called this “an extraordinary power… surely a matter for parliament given the constitutional significance of the Bill.”

The scrutiny procedures are limited. Regulations made under clauses 7, 8, 9, 11 and 17 can generally all be passed using the negative procedure (i.e. they will automatically become law without debate unless there is an objection from either House).

Nevertheless, the Government has shown that it is ready to compromise, particularly as many of the criticisms have come from Conservative backbenchers. The Government has always maintained that the purpose of the Bill is not to force through laws on significant policy issues via the backdoor. The Government committed in the Queen’s Speech to proposing primary legislation on matters such as Trade, Customs and Immigration, which is where new policy will be made. It’s to be expected that the Government will soften its position on some of these clauses over the weeks ahead particularly as they will be keen to ensure the continued support of wavering Conservative MPs.

Taking back control?

Clause 11 has provoked the ire of devolved administrations. It amends the Scotland Act 1998 in a way that prevents the Scottish Parliament amending retained EU law, where it is outside the competence of Holyrood – in effect reserving for Westminster powers that will be returned from the EU to Parliament. The SNP have called this a “power grab”, and “an attack on the founding principles of devolution”. This appears to be rather hyperbolic, as the devolved administrations do not lose any powers under the Bill. The question is how many of the powers that are returned to the UK are devolved in future.

Labour’s position is a political gamble

The Labour Party has been clear from the start of the Bill’s second reading that they intend to vote against the legislation. This might be described as “brave” since voting against at second reading, as opposed to simply tackling the details of the Bill in committee, amounts to objecting to the Bill as a matter of principle. This has led to accusations from Government ministers of Labour seeking to “frustrate” Brexit and stoking a “chaotic and disorderly” withdrawal. So far, Labour has taken every effort to avoid appearing to vote against Brexit. Whether this stance heralds a change in approach and how it will go down with the public remains to be seen.

Overall, it is clear that this Bill is necessary but will likely be amended. The Government has an important job in extraordinary circumstances. The Bill should pass tonight because there are around a dozen Labour MPs who are likely to support the Government and any potential Conservative rebels have said they will keep their powder dry until committee stage, expected after the party conferences in October. Open Europe will return with a more detailed assessment of any proposed amendments before then.