The European Union (Withdrawal) Bill

This article was originally published by the House of Commons Library and has been edited and republished here with kind permission.

The European Union (Withdrawal) Bill cuts off the source of European Union law in the UK by repealing the European Communities Act 1972. This means EU institutions can’t make laws affecting the UK any more. Prior to its publication it was known as the ‘Great Repeal Bill’.

It is the most significant constitutional bill which has been introduced by the government since the bill for the European Communities Act itself in 1972, according to the House of Commons Library.

The bill will apply to every country in the UK and specific sections of it will also include Gibraltar.

Taking back control

One of the aims of the successful referendum campaign to leave the EU was for UK political institutions to “take back control” of the laws that apply in the UK.

The very first clause in this bill repeals the European Communities Act 1972 on the day that the UK leaves the EU. It returns to Parliament sole power to make laws in policy areas where before the EU had or shared these powers.

The bill says that after exit day EU law won’t have power over any legislation passed by the UK Parliament or rulings made by UK courts. To ensure that the laws in these areas don’t just disappear post-Brexit the bill says that we’ll retain these EU laws for the time being. But UK courts won’t have to follow the judgments of the Court of Justice of the European Union after exit day.  

Legal continuity

The bill is designed to give legal continuity during Brexit by copying over all EU law to the UK post-Brexit. Without the legislation, huge holes would open up. To provide stability, the bill knits together a new post-Brexit constitutional and legal framework.

The bill creates a new category of law for the United Kingdom: retained EU law. This will consist of: all of the converted EU law, and any EU-related UK law which is in force on the day before the UK leaves the EU. Some elements of EU law specifically won’t be kept, the rights under the Charter of Fundamental Rights, for example.

These retained EU laws can be changed, replaced or repealed by the UK Parliament after exit day.

Uncertainty and complexity

The bill gives government ministers the power to ‘correct’ retained EU law so that it works effectively after exit day and to put in place any agreement to withdraw from the EU. This will be done through “secondary legislation”.

Secondary legislation can be used by the government to make changes to the law using powers delegated by Parliament. This means that Parliament does not have to approve final changes. These powers will allow the government to be flexible and make changes quickly, as well as providing more confidentiality in the exit negotiations.

Seven further bills were announced in the Queen’s Speech in June 2017. It’s anticipated that these and other “Brexit Bills” will make more significant changes or replace retained EU law and put in place any withdrawal agreement in specific policy areas.

The bill creates the legal framework for the post-Brexit constitution and statute book rather than the setting out exactly what these will look like. We won’t know that for some time.

The powers delegated to ministers within the bill have attracted some comment for their far-reaching nature. If certain conditions are met, the government will have the power to change all retained EU law.

One of the main powers is designed to allow the government to change retained EU law to ensure it works effectively outside the EU. The power can also be used to change primary and secondary legislation that isn’t retained EU law so long as the purpose of the change is to fix a problem with the retained EU law. These powers given to ministers are known as “Henry VIII” powers.

Many of the changes ministers make are likely to be technical ones, according to the House of Commons Library. But the way the powers are drafted would allow them to make larger changes to retained EU law. For example, it would be possible to replace laws that were no longer needed with new rules or create new organisations to take on roles previously held by EU institutions.

Once any withdrawal agreement is settled many of the changes to UK law needed to put it in place will be made by government ministers. For example, any arrangements agreed on the rights of EU nationals.

The power the bill gives the government to change retained EU law is very broad since the laws preserved and converted by other parts of the bill may have to be changed significantly to put in place to the withdrawal agreement.

There has been some comment on the amount of secondary legislation that will be needed to carry out Brexit. It’s estimated there are over 12,000 EU regulations to be changed into UK law, some of which will need altering to make sure there are no gaps in our laws once the UK exits the EU. The other “Brexit Bills” and secondary legislation will be needed to put the withdrawal agreement in place.

Devolution

At the moment the devolved legislatures in Scotland, Wales and Northern Ireland can’t legislate contrary to EU law. The bill changes this. Post-Brexit, the devolved legislatures won’t be able to make laws contrary to retained EU law.

Practically, this may not be a major change. However, in constitutional terms the reason for this legal restriction will have changed. Pre-Brexit, the restriction is based on each devolved legislature being part of an EU member state. Post-Brexit, the restriction would be based on an Act of the UK Parliament.

Without this change the devolved legislatures would be able to makes laws on devolved areas currently covered by EU law, such as agriculture. The bill effectively re-reserves these areas to the UK Parliament.

The House of Commons Library provides independent and impartial information to MPs, as well as publishing briefings online on legislation and topical issues. It blogs at Second Reading and you can follow it @commonslibrary for up to date facts and analysis.

For more detail read the Library’s briefing on the EU (Withdrawal) Bill.