Friday 14 July 2017

Looking at the EU (Withdrawal) Bill ~ No. 1 - Overview

Whitby Harbour
A Resources list is at the end.

On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons. It is a turgid and difficult document extending to 19 clauses and 9 proposed schedules and it has to be read against a background of other material some of which is listed at the end of this post. Here is a brief overview of the Bill.  Inevitably, a more detailed examination will be required.

Background in brief:

The European Union Referendum Act 2015 enabled the EU referendum of 23rd June 2016.  This resulted in a 52% vote to leave the European Union. 

The European Union (Notification of Withdrawal) Act 2017  gave the Prime Minister the power to notify the European Council of the UK’s intention to withdraw from the European Union under Article 50(2) of the Treaty on European Union.  The notification was on 29 March 2017.  At the same time, the UK notified its withdrawal from the European Atomic Energy Community (‘Euratom’).
According to the government, withdrawing from the EU means the UK will also cease to participate in the European Economic Area (EEA) Agreement.  Please see this November 2016 post on EEA membership.

The principal means by which EU Law has effect in the UK is the European Communities Act 1972

What the Bill seeks to do:

The Bill seeks to ensure legal continuity when EU law - (often referred to as the "acquis") - no longer has effect in the UK but achieving this will not, on any view, be a simple process.  The method chosen is to retain existing law on Exit Day and to enable amendments to be made post-Brexit.  Much of our existing law is EU-based and currently part of domestic law because of the European Communities Act 1972.

Clause 1 - The European Communities Act 1972 will be repealed on "exit day."  As things currently stand, the UK will leave the EU on 29th March 2019 (i.e. the end of the 2 years specified by Article 50 of the Treaty on European Union) but is this "exit day" for the purposes of the Bill?  In fact, the Bill gives power to Ministers to specify when "exit day" is (see Clause 14).

Clause 2 - "EU-derived domestic legislation" will continue to have effect in domestic law on and after exit day.  The definition of this phrase in Clause 2(2) is important and the exceptions set out in  Clause 2(3) should be noted.

Clause 3 - "Direct EU legislation" - so far as operative immediately before exit day - will be part of domestic law on and after exit day.  Again, it is important to note the definition and any exceptions.

Clause 4 - "Any rights, powers, liabilities, obligations, restrictions, remedies and procedures" which, immediately before exit day, are recognised and available in domestic law will continue to be so recognised.  Yet again, the detailed wording of the Bill is vital and there are important exceptions.

Clause 5 - The Bill then seeks to end the application of the "supremacy of EU law". That principle will not apply to any enactment or rule of law passed or made on or after exit day. The EU Charter of Fundamental Rights will NOT be part of domestic law on or after exit day - Clause 5(4).

Clause 6 - Domestic courts will not be bound by any principles laid down, or any decisions made, on or after exit day by the Court of Justice of the EU.  Domestic courts will NOT be able to refer any matter to the CJEU on or after exit day.  In this area, the Bill is redolent with complexity.  For example, Clause 6(2) states that - "A court or tribunal need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so."   If controversial cases arise and UK courts apply this and actually follow a post-Brexit decision of the CJEU then there is the possibility of a political row.  Thus, questions will arise as the circumstances or situations in which the judges will consider it appropriate to apply CJEU decisions.

The Bill then goes on to grant to the executive very extensive powers to make secondary legislation including a huge "Henry VIII style" extension to its power to make Regulations.  Some restrictions to this power apply.

Clause 7 - A Minister may by regulations make provision to prevent, remedy or mitigate any failure of "retained EU law" to operate effectively, or any other deficiency in retained EU law.  Basically, Regulations under this section may make any provision that could be made by an Act of Parliament BUT the Bill imposes some restrictions on what may be done.  This power to correct retained law will last for 2 years from exit day.

Clause 8 - Again, within specified limits, a Minister may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom. 

Clause 9 - A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.  

There is considerable concern over the extent of these powers and Parliament would do well to consider them robustly.  Clause 16 and Schedule 7 to the Bill contain very detailed provisions relating to the powers.  The House of Lords Constitution Committee, anticipating the "Great Repeal Bill" and the use of delegated powers, published this report  in March 2017.

Clauses 10 and 11 are concerned with Devolution aspects of withdrawal from the EU.  Clause 10 provides that devolved authorities can exercise the power to deal with deficiencies arising from withdrawal, the power to comply with international obligations and the power to implement the withdrawal agreement.  Much of the detail is in Schedule 2.

Under Clause 11 it will be outside the competence of the devolved legislatures (Scotland, Wales and Northern Ireland) to modify retained EU law in a way which would not have been compatible with EU law immediately before exit.  Schedule 3 contains considerable detail on this.

Clause 12 deals with Financial matters. Clause 13 requires the Queen's Printer to publish copies of retained direct EU legislation and related information - see also Schedule 5.  Clause 14 addresses Interpretation and Clause 15 is an index of defined expressions.  Clause 16 gives effect to Schedule 7 dealing with secondary legislation.  

Clause 17 is a further grant of powers to Ministers to make regulations.  A Minister may by regulations make such provision as the Minister considers appropriate in consequence of this Act. Schedule 8 contains more of the detail.  Further, A Minister of the Crown may by regulations make such transitional, transitory or saving provision as the Minister considers appropriate in connection with the coming into force of any provision of this Act or the appointment of exit day.

Clause 18 - with some exceptions, the Bill extends to England and Wales, Scotland and Northern Ireland.  Clause 19 deals with commencement and the short title.  Schedule 9 deals with Repeals of certain other legislation including the European Union Act 2011
Brexit negotiations are underway between the UK government and the EU but the outcome (i.e. the withdrawal agreement) is some distance away.  The government is plainly aiming to give itself the flexibility necessary to address the legal implications of Brexit but this is being done by a huge extension of powers to make secondary legislation and, due to pressures of business, much of this will receive very little scrutiny by Parliament.

The provisions relating to "Devolution" will be a matter of serious concern to Edinburgh, Cardiff and Belfast and they will doubtless be vigilant to ensure that both powers they already have are not removed and that powers flow to them when they are repatriated from the EU to the UK. 

A date for the Bill's Second Reading has yet to be set.  There is bound to be extensive commentary about this Bill and I will try to link to this. Please see Other blogs and articles below.


House of Lords Constitution Committee - The Great Repeal Bill and Delegated Powers

Explanatory Notes - Bill 005 2017-19-EN, as introduced | PDF version, 703KB

Government Fact Sheets - Information about the Repeal Bill

Delegated Powers Memorandum - Delegated Powers Memorandum (PDF, 602KB)
February 2017 the Government White Paper entitled The United Kingdom’s exit from and new partnership with the European Union White Paper (Cm 9417) 
Further White Paper - 30 March 2017 entitled Legislating for the United Kingdom’s withdrawal from the European Union (Cm 9446). 

EU Select Committee

Other blogs and articles:

With thanks to ICLR Weekly News 18th July 2017 ...
Second Reading - House of Commons Library Blog - Jack Simson Caird - The EU (Withdrawal) Bill: constitutional change and legal continuity

UK Human Rights Blog - David Hart QC - On first looking into the Brexit bill

Julian Gregory - Monckton Chambers - EU Withdrawal Bill: Initial thoughts

Paul Daly - Administrative Law Matters - Empty threats: The Explanatory Notes to the European Union (Withdrawal) Bill

Angela Patrick - Doughty Street Chambers - European Union (Withdrawal) Bill: You say tomato; I say unprecedented Executive Power

The Guardian 14th July - Schona Jolly QC - Scared about your human rights after Brexit? You should be

Update 8th August - Lord Neuberger has said UK judges need clarity after Brexit

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