European Union (Withdrawal) Act 2018

European Union (Withdrawal) Bill 2017-19
Parliament of the United Kingdom
Long title A Bill to Repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU
Citation	HC Bill 5 2017-19
Considered by	Parliament of the United Kingdom
Legislative history
Introduced by	David Davis, Secretary of State for Exiting the European Union
First reading	13 July 2017 (in the House of Commons)
Related legislation
European Communities Act 1972

The European Union (Withdrawal) Bill 2017-19 (also known as the Repeal Bill or the Great Repeal Bill) is a bill of the Parliament of the United Kingdom that proposes to transpose directly-applicable European Union law into the law of the United Kingdom, as part of the country’s exit from the European Union (Brexit). To implement this, the proposed bill will repeal the European Communities Act 1972 which first brought the UK into what became the EU, incorporate all EU law into the UK statue books, and give ministers the power to adapt and remove laws that are no longer relevant.

The bill was read the first time in the House of Commons on 13 July 2017. The bill has received criticisms from the Labour Party, the Liberal Democrats, the Scottish National Party (SNP) and Plaid Cymru, for giving ministers wide-ranging powers to modify existing legislation, for repealing certain human rights provisions, and for limiting the ability of the devolved governments to independently adapt and retain EU law, and the parties have said that they will oppose the bill as it currently stands, as have the Scottish Government and the Welsh Government.

Objectives

A white paper published on 30 March 2017 stated three objectives for the proposed Repeal Bill:

• Repeal the European Communities Act 1972 on the day the UK leaves the EU.
• Copy up to 20,000 pieces of EU law onto the UK statute book by:
  • converting directly-applicable EU law (EU regulations) into UK law.
  • preserving all laws that have been made in the UK to implement EU obligations.
  • continuing to make available in UK law the rights in EU treaties, that are relied on directly in court by an individual.
  • giving historic CJEU case law the same binding, or precedent, status in UK courts as Supreme Court decisions (and also as Scottish High Court decisions, in terms of Scottish criminal law).
  • ending the general supremacy of EU law.
• Create powers to make secondary legislation under statutory instrument procedures (so-called Henry VIII powers).

Legislative history

In October 2016 the Prime Minister, Theresa May, promised a "Great Repeal Bill", which would repeal the European Communities Act 1972 and restate in UK law all enactments previously in force under EU law. This bill would be introduced in the parliamentary session starting in 2017 and enacted before or during the Brexit negotiations; it would not come into force until the date of exit. It would smooth the transition by ensuring that all laws remain in force until specifically repealed. On 13 July 2017, David Davis, the Secretary of State for Exiting the European Union, introduced the bill in the House of Commons. As a government bill, this first reading was pro forma; the first debate will be on the second reading.

The government suggests that the bill will be a major focus of the parliamentary debate on Brexit as a whole, and may provide an alternative to a vote on the deal agreed in the Brexit negotiations.

Henry VIII clauses

In March 2017, a report by Thomson Reuters identified 52,741 pieces of legislation that have been passed since 1990. Transferring European legislation into British law is the quickest way to ensure continuity. Because these may refer to EU institutions that the UK will no longer belong to, or use phrasing assuming that the UK is an EU member state, they cannot simply be directly converted into law. Redrafting all of the tens of thousands of laws affected and voting on them through Parliament would be an impossibly time-consuming process, so the bill includes provisions, informally known as Henry VIII clauses, which would allow ministers to make secondary legislation to amend or remove these laws (both primary and secondary legislation) to resolve "deficiencies" by making statutory instruments.

The powers are divided between two sections. Section 7 makes provision for ministers to correct "deficiencies" in law (including but not limited to references to EU institutions that the UK is no longer a member of, EU treaties that are no longer relevant, and redundancies), and expires two years after the UK leaves the EU. These proposed powers could not be used to make secondary legislation for

• Imposing or increasing taxation.
• Making retrospective provision.
• Creating a relevant criminal offence.
• Amending, repealing or revoking the Human Rights Act 1998 or any subordinate legislation made under it.
• Amending or repealing the Northern Ireland Act 1998 (with some limited exceptions).

Section 9 offers ministers substantially broader powers to make changes to legislation. This grants the ability to "make any provision that could be made by an Act of Parliament (including modifying this Act)", "if the Minister considers that such provision should be in force on or before exit day". The same restrictions apply to these powers (except that they can be used to amend or repeal the Northern Ireland Act 1998), and they expire on the day the UK leaves the EU.

Although some safeguards are included to limit the situations in which law can be modified, the provisions granting these powers have been criticised for being too wide-ranging; in particular section 9, which de facto gives ministers the ability to create or repeal any law and could be used to bypass a Parliamentary vote in the final days of negotiations. The bill also allows ministers to make statutory instruments without presenting drafts to Parliament in certain cases deemed urgent. These instruments expire after one month. Labour has threatened to oppose the bill unless the scope of these statutory instruments is reduced.

Impact on devolution

In devolved administrations, the powers currently exercised by the EU in relation to common policy frameworks would return to the UK, allowing the rules to be set in the UK by democratically-elected representatives. Ministers of devolved administrations would be given the power to amend devolved legislation to correct law that would not operate appropriately following Brexit. However, the bill also prevents devolved administrations from making changes that are "inconsistent" with those made by the UK government. This significantly limits the power of the devolved governments by making it impossible for them to, for example, choose to retain a piece of EU law that has been modified by the UK government. The First Ministers of Scotland and Wales, Nicola Sturgeon and Carwyn Jones, issued a joint statement calling the bill a "naked power grab" and threatening to withhold Legislative Consent Motions unless the bill was redrafted.

EU case law

At present, case law from the European Court of Justice (ECJ) is binding on UK courts. The bill will retain ECJ case law, allowing the Supreme Court of the United Kingdom and the High Court of Justiciary depart from it only by applying "the same test as it would apply in deciding whether to depart from its own case law". ECJ judgments made after Brexit are not binding.

Human rights laws

The bill makes explicit that the Charter of Fundamental Rights of the European Union will cease to be a part of UK law after Brexit. Retaining this charter was one of the demands of Shadow Secretary of State for Exiting the European Union Keir Starmer, and Labour and the Liberal Democrats have threatened to withhold support as long as this provision remains.

In the explanatory notes to the bill, one example given of the possible uses of the Henry VIII clauses was to "modify, limit or remove the rights which domestic law presently grants to EU nationals" if no deal was reached, although the legality of this would depend on whether EU citizens' rights were deemed a deficiency, and whether removing existing rights (by delegated (secondary) legislation) might possibly constitute potentially impermissible retrospective legislation.

See also

• Brexit
• Brexit negotiations
• European Union (Notification of Withdrawal) Act 2017
• List of Acts of the Parliament of the United Kingdom relating to the European Communities / European Union
• United Kingdom invocation of Article 50 of the Treaty on European Union

External links

• European Union (Withdrawal) Bill 2017-19 Bills and legislation, parliament.uk
• Legislating for the United Kingdom’s withdrawal from the European Union (The Great Repeal Bill White Paper), 30 March 2017
• UK Government - "Plan for Britain" website