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.
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The Bill seeks to ensure legal continuity when EU law - (often referred to as the "acquis") - no longer has effect in the UK but achieving this will not, on any view, be a simple process.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Clause 1 - The European Communities Act 1972 will be repealed on "exit day."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).
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.
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)
EU Select Committee
Other blogs and articles:
With thanks to ICLR Weekly News 18th July 2017 ...
- David Allen Green, on his FT blog (£), More problems than solutions in the Brexit repeal bill
- Ian Dunt, in Politics.co.uk, Small print of repeal bill creates unprecedented new powers for Brexit ministers
- Mark Elliott, on Public Law for Everyone, The EU (Withdrawal) Bill: Initial Thoughts
- Mark Elliott, on Public Law for Everyone, The EU (Withdrawal) Bill - Resources
- Steve Peers, on the UK in a Changing Europe, Where the Brexit battles over the repeal bill will be fought in parliament
- Obiter J, Law and Lawyers blog, European Union (Withdrawal) Bill ~ an overview
- Jolyon Maugham, in Prospect, Repeal Bill: This is not what “control” looks like
- Kenneth Armstrong, in Brexit Time, Don’t Shoot the Messenger
- Michael Cross, in Law Society Gazette, ‘Eye-watering’: EU withdrawal bill is biggest change in legal system for 45 years
- Schona Jolly, in the Guardian, Scared about your human rights after Brexit? You should be (addressing specific provision in Bill not to retain / incorporate into domestic law the EU Charter of Human Rights).
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|