The European Union (Withdrawal) Bill: constitutional change and legal continuity

The long-awaited ‘Great Repeal Bill’, to be known officially as the European Union (Withdrawal) Bill, was published last Thursday. The bill is a complex mix of constitutional change and legal continuity. Jack Simson Caird highlights some of its main elements.

Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017.

Constitutional change

The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the ‘conduit pipe’ through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:

  • the creation of a new distinct body of law known as ‘retained EU law’;
  • broadly-framed delegated powers for government to alter this body of law;
  • new instructions to the courts on how to interpret retained EU law; and
  • amendments to the legislation that underpin devolution.

Legal continuity

The government’s position is that the primary purpose of the bill is to provide a ‘functioning statute book’, ensuring legal continuity after exit day. The bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.

Balancing continuity and change

Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) ‘wholesale’ through this bill, the government has claimed that the general rule is that the ‘same rules and laws’ will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:

  • the delegated powers in the bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
  • a proportion of EU law will no longer apply once the UK is outside the EU;
  • the government is bringing forward a number of bills to make substantive policy changes in areas currently covered by EU law; and
  • preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU member state and subject to the full force of EU law.

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Ask the Experts: Legal and Constitutional Implications of Brexit

On 13 June UCL Public Policy and the House of Commons Library jointly hosted an ‘Ask the Experts’ event on the legal and constitutional implications of Brexit. The panel consisted of specialists from both institutions. Marc Phoon reports.

The possible economic and social consequences of Brexit were central features of the referendum debate and continue to be discussed widely. However, of equal importance are the legal and constitutional implications of Brexit, which may very well underpin the long term outcomes of the Brexit negotiations. ‘Ask the Experts: Legal and Constitutional Implications of Brexit’, an event jointly hosted by UCL Public Policy and the House of Commons Library on 13 June, aimed to provide some clarity on this matter.

The panel consisted of staff from both the House of Commons Library and UCL. Vaughne Miller is the Head of International Affairs and Defence at the House of Commons Library and an EU law specialist. She was joined by two of her colleagues, Arabella Lang, a treaty specialist and Jack Simson Caird, a constitutional law specialist and UCL alumnus. Ronan McCrea, a Senior Lecturer from the Faculty of Laws and Christine Reh, Reader in European Politics from the Department of Political Science, both based at UCL, completed the panel. Meg Russell from the Constitution Unit chaired the event. In introducing the panel, she emphasised the high-quality, reliable and digestible briefings publicly available from the House of Commons Library, as well (of course) as the materials available from the Constitution Unit, the UCL Brexit Hub and other UCL experts.

Vaughne Miller

Vaughne Miller kick-started the discussion by offering an overview of the differing approaches taken by the EU and the UK government ahead of the Brexit negotiations. The EU, through the European Commission and European Council, has already set out its priorities for the negotiations. It is particularly concerned with issues related to EU citizens’ rights post-Brexit, the border between Northern Ireland and the Republic of Ireland and the so called ‘divorce bill’ – i.e. the financial settlement between the UK and the EU. She noted that the EU has a clearer position than the UK government because of the EU’s laws on transparency, which mean that the majority of the negotiation guidelines coming from the EU will be publicly available.

Miller went on to explain that it is not yet clear how the UK parliament is going to be kept informed about the progress of Brexit negotiations. The government has indicated that the UK parliament will be kept at least as informed as the European Parliament. Nevertheless, MPs have signalled their expectations on this matter through a report published by the European Scrutiny Committee. Furthermore, because of the general election and summer recess, there are concerns about whether there will be adequate parliamentary scrutiny of the early stages of the negotiations. Notably, select committees in the Commons which scrutinise government departments are not likely to be properly established until September this year.

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Taking back control? Initial thoughts on the Great Repeal Bill white paper

In the newly published Great Repeal Bill white paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not parliament, that will benefit from the Great Repeal Bill process. The Hansard Society’s Ruth Fox has five initial questions raised by the white paper.

1/ When will the parliamentary votes on any Brexit deal be held?

The white paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both chambers of parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the white paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the white paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.

2/ Is the government’s description of the delegated legislation process accurate?

On page 23 of the white paper, the government states that parliamentary procedures allow parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that parliament can and regularly does both debate and vote on secondary legislation.

What the white paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not parliament. Paragraph 3.21 states that under the negative procedure members of either chamber can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3 per cent of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just five were granted.

Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.

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Why parliament needs a ‘good Brexit’

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There are two scenarios for the way in which parliament’s handling of Brexit affects its position in the UK’s democratic system – one in which Brexit strengthens the executive, and one in which parliament emerges enhanced. Which of these prevails could have an effect long after the UK leaves the EU, writes the Hansard Society’s Brigid Fowler. If parliament has a ‘good Brexit’, it could strengthen its standing in relation to both the executive and the public.

The UK’s vote to leave the EU was ‘a vote to restore … our parliamentary democracy’, the Prime Minister declared in her January 17 Brexit speech. Theresa May suggested that the UK’s possession of ‘the principle of parliamentary sovereignty [as] the basis of our unwritten constitutional settlement’ was among the reasons the country decided it cannot continue to operate inside a supranational framework. And yet this reaffirmation of the traditional role of the UK parliament, delivered as part of one of the most important prime ministerial policy announcements in a generation, was delivered in a building managed by the Foreign Office, not at Westminster.

The irony has not been lost on many politicians and commentators reacting to Mrs May’s speech, including the Leader of the Opposition. The disjunction seemed to encapsulate one of the central tensions in the Brexit process, namely its potential to either expand or undermine the role of parliament in the UK’s democratic system. Especially now that the arguments about process that surrounded the Prime Minister’s speech have been followed by the Supreme Court’s ruling on the scope of the government’s prerogative powers, they have refocused attention on the implications of Brexit for the legislature.

Regardless of positions on Brexit, and the type of Brexit the Prime Minister has now said she will pursue, the EU referendum and withdrawal process represents a significant challenge to the UK’s traditional system of representative democracy. The UK is now embarked on one of the most consequential policies of its post-1945 history without this ever having been the policy of a government formed as a result of a general election. Before the referendum, EU withdrawal was the official policy of only two of the ten parties represented in the House of Commons (not counting Sinn Féin), mustering nine MPs between them (eight DUP and one UKIP). Taking Conservative, Labour and UUP splits into account, only 158 of 650 MPs – 24% – are reckoned to have backed ‘Leave’. The proportion of peers backing Brexit was probably even lower.

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Theresa May’s ‘Great Repeal Bill’: some preliminary thoughts

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On Sunday Theresa May announced that a ‘Great Repeal Bill’, repealing the European Communities Act 1972 and providing for EU law to be translated into UK law post-Brexit, would be included in the 2017 Queen’s speech. Mark Elliott offers some preliminary thoughts on what this will mean in practice. He writes that it is likely that the legislation will seek to confer upon ministers substantial powers to carry out the process of deciding which aspects of domesticated EU law are to be retained, which are to be amended and which are to excised from UK law altogether. This fits with the overarching message from the speeches on Brexit at the Conservative conference – that the government is committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions.

‘Brexit means Brexit’ was only ever going to cut it for so long. And although, in her first speech to a Conservative Party conference as Prime Minister, Theresa May has repeated that well-worn phrase, she has evidently come to the view that Eurosceptics – or Brexiteers, as we must now call then – now require more by way of red meat. Such nourishment was, on the face of it, supplied in abundance in May’s speech – by way not only of the announcement that the government plans to trigger the Article 50 withdrawal process by the end of March 2017, but also by means of signalling that the next Queen’s speech will include a ‘Great Repeal Bill’. Since the primary object of the proposed ‘great repeal’ is the European Communities Act 1972 (ECA) itself – the bête noire of the Europhobic right – the announcement of the new bill is undoubtedly a clever piece of political theatre, the aim being to satisfy those who have grown weary, not to say sceptical, of May’s tautological mantra. But does the announcement of the Great Repeal Bill amount to anything more than this?

Announcing the repeal of the ECA is doubtless a sensible tactical move by the Prime Minister given the demands she faces from her right-wing. The ECA gives not only effect to EU law in the UK, but also priority to EU law over UK law – including over acts of parliament. Focusing on the proposal to repeal the ECA fits very neatly with the narrative developed by the Prime Minister in her speech about making the UK a ‘fully-independent, sovereign country’. Or, as David Davis put it in his speech , repealing the ECA will deliver ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.

There are, however, two caveats that make the announcement of the ECA’s repeal far less legally significant than might at first be assumed. On the one hand, although the Great Repeal Act (as it will by then have become) will be on the statute book before Brexit day, it will not take effect and repeal the ECA until Brexit day. This announcement does not, therefore, amount to the sort of immediate, shock-and-awe ECA repeal that was floated by some on Brexit’s extreme fringes. That was a suggestion that was never likely to be implemented, given that it would have placed the UK in breach of its EU treaty obligations pre-Brexit. On the other hand, however, repealing the ECA upon Brexit is hardly a big deal. Indeed, a natural assumption would be that the ECA would inevitably be repealed upon Brexit, given that it would make no sense, after leaving the EU, to retain legislation providing for EU law’s effect and priority in the UK. However, we can in fact go further and say that repealing the ECA post-Brexit is legally unnecessary, and will in fact amount to nothing more than a tidying-up exercise. That is so because the ECA only gives effect and priority to such EU laws as are, at any given point in time, binding upon the UK thanks to its EU treaty obligations. Post-Brexit, the UK will have no such obligations, and the ECA will therefore give effect and priority to no EU law whatever.

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