In March 2017 the British government published a white paper (a government report giving information or proposals on an issue) in which it was established how it plans to execute the legal transition of the UK being a member of the European Union to a post-Brexit status of non-membership. There are fears that after the UK leaves the EU, scheduled on 29 March 2019, there will be a “black hole” in the UK statute book. As there are thousands of pieces of EU-related legislation in force, it is impossible to substitute all existing EU legislation within two years. As soon as the UK leaves the EU, all EU rules, directives and regulations would not be applicable anymore. The Withdrawal Bill intends to avoid such a scenario and ensure a smooth transition on the day after Brexit.
The three central functions of the Withdrawal Bill are:
1. Repeal the European Communities Act 1972, a legislation which provides legal authority for EU law to have effect as national law in the UK. After Brexit, this will no longer be the case.
2. Convert all EU laws into UK law. Thousands of European laws, diktats and directives are to be turned into UK law, so that they will continue to apply after Brexit.
3. Create powers to make secondary legislation. Ministers are given temporary powers to amend EU laws by way of secondary legislation in the wake of Brexit.
The Withdrawal Bill will end the supremacy of EU law in UK law on “exit day”, a term used in the bill, but yet to be determined. After Brexit, newly passed laws do not have to be compatible with laws passed in Brussels anymore. In addition, a breach of the general principles of EU law can no longer be actioned before court on or after exit day.
The Withdrawal Bill intends to create a “snapshot” of EU law including EU-derived domestic legislation, EU legislation and treaties as well as the judgements of the Court of Justice of the European Union (CJEU) that apply immediately before Brexit. However, the Charter of Fundamental Rights is excluded from this process. This body of retained EU law will apply immediately after the UK has left the EU until it is modified by domestic legislation enacted by Parliament. Whilst the supremacy of EU law will not apply on or after exit day to legislation or CJEU decisions made after exit day, it will, however, be treated as applying to the interpretation, disapplication or revocation of any such enactment or rule of law passed before exit day. A retained EU regulation would, for example, take precedence over pre‐exit domestic legislation that is inconsistent with it.
On or after exit day, retained EU case law will have the same binding status in domestic courts and tribunals as existing decisions of the Supreme Court or High Court of Justiciary (HCJ) in Scotland. A court must interpret the validity, meaning or effect of retained EU law in accordance with retained case law and “retained general principles of EU law” so far as relevant and so far as that EU law has not been modified on or after exit day (clause 6(3) of the Withdrawal Bill).
A court or tribunal may also have regard to “anything done…by the European Court, another EU entity or the EU” on or after exit day if it considers it appropriate to do so (clause 6(2) of the Withdrawal Bill).
After Brexit, a UK court or tribunal will not be bound by any principles or decisions of the CJEU established on or after exit day, however, nor can it refer any matter to the CJEU. The Supreme Court and the HCJ will no longer be bound by any retained EU case law (clause 6(4)(a) of Withdrawal Bill). If the Supreme Court or HCJ wish to depart from retained EU case law, however, then they must apply the same test as they ordinarily would in deciding whether to depart from their own precedents. This gives pre-exit CJEU case law the same binding and precedent status as cases determined by the Supreme Court and HCJ.
There are believed to be 12,000 EU regulations in force, while the British Parliament has passed 7,900 statutory instruments implementing other EU legislation and 186 acts which incorporate a degree of EU influence. There are technical issues with the conversion of this EU law into UK law. Many EU laws have references to EU institutions in which the UK will no longer participate after Brexit, or mention EU law itself which will not be part of the UK legal system after Brexit.
The Withdrawal Bill empowers ministers to make regulations to prevent, remedy or mitigate, as a result of the UK’s withdrawal any failure of retained EU law to operate effectively or any other deficiency of retained EU law (Clause 7(1) of Withdrawal Bill).
It also specifies that regulations under clause 7 may make any provision that could be made by an Act of Parliament. This includes amendments to primary legislation.
The Withdrawal Bill suggests that regulations under clause 7 may not be made more than two years after exit day and powers under the regulations will expire at that point in any event. Furthermore, regulations under clause 7 are subject to the negative resolution procedure, meaning that they will automatically become law without debate unless there is an objection from either House of Parliament. The regulations are also subject to annulment if they are not laid before and approved by both Houses of Parliament.
However, the Withdrawal Bill also provides for ministers to make regulations under clause 7(1) without the scrutiny of either House of Parliament, and avoiding either resolution procedure, where, in their opinion, there is “reason of urgency”. A regulation made on urgent grounds will only endure for one month unless it receives Parliamentary approval in the meantime.
As well as the power to make corrective secondary legislation, the Withdrawal Bill enables ministers to make regulations as they consider appropriate as a consequence of the Withdrawal Bill. This does not include a power to amend primary legislation.
Yes, Parliament will vote on the Withdrawal Bill in the normal process. The first reading by the Secretary of State for Exiting the European Union, David Davis, was on 13 July 2017. It is anticipated that the second reading will not be until after the House of Commons returns from its summer recess at the beginning of September 2017. Given the initial reaction to the Withdrawal Bill, Members of Parliament are expected to scrutinise it over a number of days, with amendments put forward and voted on. A vote is not expected until October.
The Withdrawal Bill was met with considerable political controversy. The two main criticisms are described below:
Critics of the bill, including the main opposition parties, claim that it will give the British government too many powers and call the relevant section “Henry VIII clauses”, which refers to the Statute of Proclamation 1539 allowing Henry VIII to legislate by proclamation. The Withdrawal Bill provides that ministers can use the delegated power according to their consideration, so that it is up to them to decide when a retained EU law is “deficient” and if there are “urgent circumstances”. This might not always be a straightforward question. As a consequence, some institutions and commentators claim that the powers provided in the Withdrawal Bill would enable the British government to legislate without the approval of Parliament in an unprecedented breadth of legal areas, handing ministers “sweeping powers” to make hasty, ill thought-out legislation.
The British government has attempted to reassure critics by the inclusion of provisions into the Withdrawal Bill making such measures time limited and subject to a certain control by Parliament. Furthermore it is worth considering that delegated legislation is amenable to judicial review, allowing the means to check and challenge questionable secondary legislation.
Some of the EU laws are in areas that are controlled by the devolved administrations (Scotland, Wales and Northern Ireland) – so the question arises if these areas become part of Westminster law, or if they will be added to the statute book in Scotland, Wales and Northern Ireland once taken back from Brussels.
The Scottish government claims that Westminster was planning a “power grab” with the Withdrawal Bill by refusing to hand over all responsibilities currently exercised by the EU in devolved policy areas such as fisheries and agriculture. So far it’s not entirely clear how the transition will work, although the British government says it will work closely with the devolved administrations. It also predicts the repeal process will result in “a significant increase in the decision-making power of each devolved administration”, as powers in devolved areas are repatriated from Brussels, and ministers have confirmed the devolved administrations will be asked to consent to the bill. However, this does not amount to a veto.
Even though the Withdrawal Bill is met with political controversy, the core effects of its initial form are very likely to receive Royal Assent. With the Withdrawal Bill, the supremacy of EU law in the UK will end upon exit day, however, it is interesting to note that an initially substantial body of retained EU law will still be subject to the (historic) legal supremacy of the EU and the court decisions of the CJEU, until the law will be amended on or after exit day. The main aim of the Withdrawal Bill is that the British Parliament will be able to change the body of law without having to adhere to the supremacy of EU law. It remains to be seen how quickly the retained EU law will be amended on and after Brexit, most likely this is going to be a very gradual process. The “black hole” scenario will certainly be avoided.
Guest Author: Elisabeth Conner, Lawyer at The Wilkes Partnership LLP
