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European Union (Withdrawal) Act 2018

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European Union (Withdrawal) Bill 2017-19
Parliament of the United Kingdom
  • 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.
Territorial extentEngland, Wales, Scotland and Northern Ireland (with some extensions[a])
White paper[1] [2]
Legislative history
Bill citationHC Bill 5 2017-19
Introduced byDavid Davis, Secretary of State for Exiting the European Union
Introduced13 July 2017
First reading13 July 2017
(in the House of Commons)
Second reading7 September 2017 (scheduled)
11 September 2017
(additional date reserved)
(in the House of Commons)
Related legislation
European Communities Act 1972
Part of a series of articles on
UK membership
of the European Union
(1973–2020)
Accession
1975 referendum
Treaty amendments
Single European Act, 1986 (UK ratification)
Maastricht Treaty, 1992 (UK ratification)
Treaty of Amsterdam, 1997 (UK ratification)
Treaty of Nice, 2001 (UK ratification)
Treaty of Lisbon, 2007 (UK ratification)
MEPs for UK constituencies
Members 1973–1979 (elected by parliament)
Members 1979–1984 (1979 election)
Members 1984–1989 (1984 election)
Members 1989–1994 (1989 election)
Members 1994–1999 (1994 election)
Members 1999–2004 (1999 election)
Members 2004–2009 (2004 election)
Members 2009–2014 (2009 election)
Members 2014–2019 (2014 election)
Members 2019–2020 (2019 election)
Officials and bodies
Issues and events
Withdrawal

The European Union (Withdrawal) Bill,[b] also known as the Repeal Bill or the Great Repeal Bill,[2] 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,[3] 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 statute 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.[4][5][6]

Objectives

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

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. It would smooth the transition by ensuring that all laws remain in force until specifically repealed.[9] 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.[10]

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.[11]

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. The date is to be determined by a minister, and will not necessarily be 29 March 2019 (the date on which the UK ceases to be an EU member under Article 50), allowing for flexibility in the event of a transitional deal.[12]

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.[13] 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).[1]: §7 

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.[1]: §9 

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 (including itself) and could be used to bypass a Parliamentary vote in the final days of negotiations.[14] While pro-Remain and Soft Brexit parties have criticised the powers it gives the government, Dominic Cummings of Vote Leave instead criticised the clause for giving too much power to the EU – as section 9 powers can be used to modify the Bill itself, it would empower the government to "ditch almost [the] entire Bill via final agreement with EU" and backtrack on parts of withdrawal in the final days of negotiations.[15]

The bill also allows ministers to make statutory instruments without presenting drafts to Parliament in certain cases deemed urgent.[1]: sch.7, pt.3  These instruments expire after one month. Labour has threatened to oppose the bill unless the scope of these statutory instruments is reduced.[4]

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.[8]: ch.4  However, the bill also prevents devolved administrations from making changes that are "inconsistent" with those made by the UK government.[1]: sch.2, pt.3(2)  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.[14] 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.[6]

EU case law

At present, case law from the European Court of Justice (ECJ) is binding on UK courts. The bill will have ECJ case law retained as law, but allow the Supreme Court of the United Kingdom and Scotland's High Court of Justiciary to depart from it, after applying the same test as they would apply in deciding whether to depart from their own case law. ECJ judgments made after the date of exit will no longer automatically become binding in the United Kingdom.[1]: §6 

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.[1]: §5(4)  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.[4][5]

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.[16]: p.10 [17]

Additional repeals

In addition to the repeal of the European Communities Act 1972, the bill also proposes to repeal the following Acts.

See also

Notes

  1. ^ Section 18(2): "Any provision of this Act which amends or repeals an enactment has the same extent as the enactment amended or repealed."
    Section 18(3): "Regulations under section 7 or 17 may make provision which extends to Gibraltar—(a) modifying any enactment which—(i) extends to Gibraltar and relates to European Parliamentary elections, or (ii) extends to Gibraltar for any purpose which is connected with Gibraltar forming part of an electoral region, under the European Parliamentary Elections Act 2002, for the purposes of such elections, or (b) which is supplementary, incidental, consequential, transitional, transitory or saving provision in connection with a modification within paragraph (a)."
  2. ^ Full reference European Union (Withdrawal) Bill [HC], Bill 5, 2017-19; that is, House of Commons bill number 5 of parliamentary session 2017–2019.[1]

References

  1. ^ a b c d e f g "European Union (Withdrawal) Bill (HC Bill 5)". Public Bills before Parliament 2017-19. UK Parliament. Retrieved 22 July 2017.
  2. ^ "Repeal bill: All you need to know". 13 July 2017 – via www.bbc.com. The day after triggering Brexit, the government published details of its 'Great Repeal Bill'…. It is now being introduced to Parliament, with the formal title of the European Union (Withdrawal) Bill.
  3. ^ Stewart, Heather (12 July 2017). "Labour threat to defeat Theresa May over Brexit bill" – via The Guardian.
  4. ^ a b c Stewart, Heather (12 July 2017). "Brexit: Labour threatens to defeat Theresa May over 'great repeal bill'". The Guardian. Retrieved 14 July 2017.
  5. ^ a b Stewart, Heather (13 July 2017). "'Great repeal bill' human rights clause sets up Brexit clash with Labour". The Guardian. Retrieved 14 July 2017.
  6. ^ a b Stewart, Heather; MacAskill, Ewen; Walker, Peter (13 July 2017). "Brexit bill to cause constitutional clash with Scotland and Wales". The Guardian. Retrieved 14 July 2017.
  7. ^ "Brexit: Government to set out plans to end dominance of EU law". Sky News. 30 March 2017.
  8. ^ a b c "Legislating for the United Kingdom's withdrawal from the European Union" (PDF). Department for Exiting the European Union. 30 March 2017.
  9. ^ Mason, Rowena (2 October 2016). "Theresa May's 'great repeal bill': what's going to happen and when?". The Guardian. Retrieved 3 October 2016.
  10. ^ "European Union (Withdrawal) Bill 2017-19". Bills before Parliament 2017-19 > Public Bills. UK Parliament. Retrieved 13 July 2017.
  11. ^ Anushka Asthana (20 December 2016). "Theresa May indicates MPs will not be given vote on final Brexit deal". The Guardian. Retrieved 24 February 2017.
  12. ^ "More problems than solutions in Brexit repeal bill". Financial Times. 13 July 2017. Retrieved 17 July 2017.
  13. ^ "Brexit live: PM told divorce first then trade 10:17". Sky News. 30 March 2017.
  14. ^ a b Dunt, Ian (13 July 2017). "Small print of repeal bill creates unprecedented new powers for Brexit ministers". politics.co.uk. Retrieved 14 July 2017.
  15. ^ Stone, Jon; Woodcock, Andrew (17 July 2017). "David Davis is as 'thick as mince' and as 'lazy as a toad', says Vote Leave chief". The Independent. Retrieved 19 July 2017.
  16. ^ "EUROPEAN UNION (WITHDRAWAL) BILL EXPLANATORY NOTES" (PDF). House of Commons. Retrieved 14 July 2017.
  17. ^ Daly, Paul (13 July 2017). "Empty Threats: The Explanatory Notes to the European Union (Withdrawal) Bill". Administrative Law Matters. Retrieved 14 July 2017.
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