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European Union (Withdrawal) Bill 2017-19

European Union (Withdrawal) Act 2018
(Prospective title)
Crowned Portcullis.svg
Parliament of the United Kingdom
Current long title as Bill:
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.

Prospective long title as Act after receiving Royal Assent:
An Act to Repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.
Territorial extent United Kingdom
(England and Wales, Scotland, Northern Ireland)

Indirectly also affects (not part of the territorial extent):
Gibraltar
(Although it also provides in Section 19(3): "(3) Regulations under section 7(1) or 17 may make provision which extends to Gibraltar...[a])

The Isle of Man
[The Bailiwick of] Jersey
The Bailiwick of Guernsey
Date passed 20 June 2018
Date of Royal Assent 26 June 2018
(Prospective)
Date commenced 26 June 2018
(Prospective)
(will become partly in force: Sections 7 to 10, 12, 14 to 16, 17(1) to 17(3), 17(5), 18 and 19)
Date effective 20 June 2018
(Sections 7 to 10, 12, 14 to 16, 17(1) to 17(3), 17(5), 18 and 19)
(Retrospective)
(according to Section 19)
Legislative history
Bill citation HL Bill 112
(20 June 2018)
Bill 229 2017-19
(18 June 2018)
HL Bill 111
(13 June 2018)
Bill 212 2017-19
(17 May 2018)
HL Bill 102
(8 May 2018)
[2]
(18 January 2018)
Bill 147 2017-19
(21 December 2017)
Bill 5 2017-19
(13 July 2017)
Bill published on 13 July 2017
(in the House of Commons)
18 January 2018
(in the House of Lords)
Introduced by David Davis, Secretary of State for Exiting the European Union
(in the House of Commons)
Baroness Evans of Bowes Park, Leader of the House of Lords,
and Lord Callanan, Minister of State for Exiting the European Union
(in the House of Lords)
First reading 13 July 2017
(in the House of Commons)
18 January 2018
(in the House of Lords)
Second reading 7 and 11 September 2017
[1]
(in the House of Commons)
30 and 31 January 2018
(in the House of Lords)
Third reading 17 January 2018
(in the House of Commons)
16 May 2018
(in the House of Lords)
12 and 13 June 2018
(1st 'Ping-Pong')
(in the House of Commons)
18 June 2018
(1st 'Ping-Pong')
(in the House of Lords)
20 June 2018
(2nd 'Ping-Pong')
(on the same day in both Houses, first in the Commons and then in the Lords)
Committee report [3]
White paper [4] [5]
Amendments
[6]
Repealing legislation
European Communities Act 1972
(on 'Exit Day')
European Parliamentary Elections Act 2002
European Parliament (Representation) Act 2003
European Union (Amendment) Act 2008
European Union Act 2011
European Union (Approval of Treaty Amendment Decision) Act 2012
European Union (Approvals) Act 2013
European Union (Approvals) Act 2014
Serious Crime Act 2015,
Sections 82 and 88(5)(c)
European Union (Finance) Act 2015
European Union (Approvals) Act 2015
Status: Not yet in force
Constitutional documents and events (present & historical) relevant to the status of the United Kingdom and legislative unions of its constituent countries
Royal Coat of Arms of the United Kingdom (HM Government).svg
Treaty of Union 1706
Acts of Union 1707
Wales and Berwick Act 1746
Irish Constitution 1782
Acts of Union 1800
Government of Ireland Act 1920
Anglo-Irish Treaty 1921
Royal and Parliamentary Titles Act 1927
EC Treaty of Accession 1972
NI (Temporary Provisions) Act 1972
European Communities Act 1972
Local Government Act 1972
Local Government (Scotland) Act 1973
NI Border Poll 1973
NI Constitution Act 1973
Referendum Act 1975
EC Membership Referendum 1975
Scotland Act 1978
Wales Act 1978
Scottish Devolution Referendum 1979
Welsh Devolution Referendum 1979
Local Government (Wales) Act 1994
Local Government etc. (Scotland) Act 1994
Referendums (Scotland & Wales) Act 1997
Scottish Devolution Referendum 1997
Welsh Devolution Referendum 1997
Good Friday Agreement 1998
Northern Ireland Act 1998
Government of Wales Act 1998
Scotland Act 1998
Government of Wales Act 2006
Northern Ireland Act 2009
Welsh Devolution Referendum 2011
European Union Act 2011
Scotland Act 2012
Edinburgh Agreement 2012
Scottish Independence Referendum 2014
Wales Act 2014
European Union Referendum Act 2015
EU Membership Referendum 2016
Scotland Act 2016
Wales Act 2017
EU (Notification of Withdrawal) Act 2017
Invocation of Article 50 2017
European Union (Withdrawal) Bill 2018

The European Union (Withdrawal) Bill 2017-19 is a bill passed by the Parliament of the United Kingdom (that when enacted on receiving Royal Assent, will be called the European Union (Withdrawal) Act 2018) to enable the implementation of the country's exit from the European Union (Brexit) by repealing the European Communities Act 1972 automatically at a future date, that implemented in UK law the ratification by the United Kingdom of its accession into the European Communities (EC) on 1 January 1973, which would later be transformed into what is now known as and called the European Union (EU).

This will "cut off the source of EU law in the UK... and remove the competence of EU institutions to legislate for the UK."[2] As such, "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."[2]

To provide legal continuity, it will also transpose directly-applicable already-existing EU law into UK law,[3] and so "create a new category of domestic law for the United Kingdom: retained EU law."[2] It will also give ministers the power to adapt and remove laws that are no longer relevant.

Prior to its publication, the proposed bill was commonly called the Repeal Bill or Great Repeal Bill.[4] It was read the first time in the House of Commons on 13 July 2017, and completed its passage through the Commons on 17 January 2018, by passing the Third Reading by 324 votes to 295. It completed its passage through the House of Lords on 16 May 2018, after peers passed a number of amendments, including 15 defeats for the Government.[5][6] These amendments were debated and voted down by the House of Commons and it finally completed its passage though both Houses on 20 June 2018 almost a year after it was first introduced.

Objectives[edit]

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

  • Repeal the European Communities Act 1972 on the day the UK leaves the EU.
  • Copy up to 20,000 pieces of EU law onto the UK statute book by:[7]
    • converting directly-applicable EU law (EU regulations) into UK law.
    • preserving all laws that have been made in the UK to implement EU obligations.
    • continuing to make available in UK law the rights in EU treaties, that are relied on directly in court by an individual.
    • (Not in the original white paper) "In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law", but also provides that "But the Supreme Court is not bound by any retained EU case law".
    • ending the supremacy of EU law in the United Kingdom.[8]:ch.2
  • Create powers to make secondary legislation[8]:ch.3 under statutory instrument procedures (informally (and usually pejoratively) called Henry VIII clauses).

Legislative history[edit]

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][4]

House of Commons First and Second Readings[edit]

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, with the first debate taking place on the second reading.[10]

The second reading and debate on the bill began on 7 September 2017.[11][12] The debate and second reading resumed on 11 September.[12][13] Shortly after midnight on 12 September, the second reading passed by a margin of 326 to 290, a majority of 36 votes,[12][14] after an amendment proposed by the Labour Party was rejected by a margin of 318 to 296.[15] A motion to put the Bill under eight days of Committee scrutiny passed 318 to 301.[15]

House of Commons Committee Stage[edit]

The Committee stage was originally scheduled to take place after MPs returned to Parliament following the conclusion, in October, of their respective party conferences.[11] However, House of Commons leader Andrea Leadsom announced on 26 October that the committee stage was to begin on 14 November.[16] Committee stage began as scheduled on 14 November[17] as a Committee of the Whole House, and completed on 20 December 2017.

MPs tabled more than 470 amendments to the bill,[17] and one of these provided Theresa May's government with its first defeat on government business, as MPs voted by 309 to 305 to give Parliament a legal guarantee of a vote on the final Brexit deal struck with Brussels.[18] The government had originally suggested that as the bill will be a major focus of the parliamentary debate on Brexit as a whole, it would provide an alternative to a vote on the deal agreed in the Brexit negotiations.[19] However, on 13 November 2017 the government announced that it would introduce a separate Withdrawal Agreement and Implementation Bill to deal separately with examining an agreement from the negotiations between the UK and EU, if any is reached, which would provide Parliament with a vote, but this did not prevent the amendment to the bill being passed.

Although the bill is planned to be enacted during the Brexit negotiations, it will not come into force until 'exit day'. As originally tabled, the bill did not give a date for 'exit day', but said that " 'exit day' means such day as a Minister of the Crown may by regulations appoint".[20] If no time is specified, it was to be "the beginning of that day".[20] However, the government tabled an amendment in Committee Stage so the bill now says " 'exit day' means 29 March 2019 at 11.00 p.m". To avoid a second possible defeat,[21] the government accepted a further amendment that "A Minister of the Crown may by regulations amend the definition of 'exit day' ",[20] allowing for flexibility in the event of a transitional deal, or extra time being needed in the negotiations.

There was a total of 40 divisions during Committee Stage.[22] Proposed amendments that were not passed include:

  • An amendment to exclude the section of the bill which states that the Charter of Fundamental Rights of the European Union will not be part of domestic law after exit day, was defeated by 311 votes to 301.[23] On 5 December the Government had published an analysis setting out how each article of the charter will be reflected in UK law after Brexit.[24]
  • An amendment to allow the UK to remain in the EU Customs Union was defeated by 320 votes to 114.[25]
  • An amendment to hold a referendum on whether to: (1) accept the final exit deal agreed with the EU; or (2) remain in the EU, was defeated by 319 votes to 23.[26]

House of Commons Report Stage and Third Reading[edit]

The Report Stage and Third Reading happened on 16 and 17 January 2018.[27] The bill passed Third Reading by 324 votes to 295.[28]

House of Lords First and Second Readings and Committee Stage[edit]

The bill had its First Reading in the Lords on 18 January 2018,[29] and Second Reading on 30 and 31 January 2018,[27] and committed to a Committee of the Whole House. This lasted for eleven days between 21 February and 28 March.[30]

House of Lords Report Stage[edit]

As part of the Lords Report Stage, a number of amendments were passed, of which 170 were proposed by the Government, and 14 were defeats for the Government.[5][31] The defeats included:

  • First defeat (amendment 1): A proposal requiring ministers to report on the Government's efforts to negotiate a continued customs union between the EU and the UK was passed by 348 to 225 – a majority of 123.[32][33]
  • Second defeat (amendment 11): A proposal that certain areas of retained EU Law cannot be amended or repealed after Exit by Ministers, but only through primary legislation (i.e. an Act of Parliament), was passed by 314 to 217 – a majority of 97.[34] These areas of retained EU Law are: (a) employment entitlements, rights and protection; (b) equality entitlements, rights and protection; (c) health and safety entitlements, rights and protection; (d) consumer standards; and (e) environmental standards and protection.[35] Even technical changes to the retained EU Law in these areas can only be made with approval of both Houses of Parliament, and following 'an enhanced scrutiny procedure'.
  • Third defeat (amendment 15): One of the few pieces of EU Law the bill proposed to repeal, rather than transpose into UK Law, was the Charter of Fundamental Rights of the European Union, but an amendment to keep the Charter part of UK Law after Exit was passed by 316 to 245, majority 71.[36][37]
  • Fourth defeat (amendment 18): A proposal which allows individuals to retain the right to challenge the validity of EU law post-Brexit was passed by 285 to 235 – a majority of 50.[38][39]
  • Fifth defeat (amendment 19): A proposal which limits ministerial powers to alter EU law when it is incorporated into UK law post-Brexit was passed by 280 to 223 – a majority of 57.[38][40]
  • Sixth defeat (amendment 31): A proposal to amend a clause that originally gave ministers power to make 'appropriate' changes to legislation, to instead give them power to make 'necessary' changes, was passed by 349 votes to 221 – a majority of 128, 25 April 2018.[41][42]
  • Seventh defeat (amendment 49): A proposal that means parliament must approve the withdrawal agreement and transitional measures in an act of parliament, before the European parliament has debated and voted on this, and also gives the Commons the power to decide the next steps for the government if the deal is rejected (dubbed the 'meaningful vote') was passed by 335 to 244 – a majority of 91.[43][44][45]
  • Eighth defeat (amendment 51): A proposed change giving parliament a say on future negotiations on the UK's future relationship with the EU was passed by 270 to 233 – a majority of 37.[43][46]
  • Ninth defeat (amendment 59): A proposed change requiring the government to reunite unaccompanied child refugees with relatives in the UK was passed by 205 to 181 – a majority of 24.[43][47]
  • Tenth defeat (amendment 88): The Lords voted in favour of inserting a new clause regarding the continuation of North-South co-operation and the prevention of new border arrangements between Northern Ireland and the Republic of Ireland, 309 votes to 242 – a majority of 67.[48][49]
  • Eleventh defeat (amendment 93): A proposal to allow the Government to replicate any EU law in domestic law and to continue to participate in EU agencies (such as European Atomic Energy Community (Euratom)) after Brexit was passed by 298 to 227 – a majority of 71.[43][50]
  • Twelfth defeat (amendment 95): A proposal to remove the exit day of 29th March 2019 from the face of the Bill was passed by 311 to 233 – a majority of 78.[43][51]
  • Thirteenth defeat (amendment 110A): A proposal to mandate the Government to negotiate continued membership of the European Economic Area was passed by 245 to 218 – a majority of 27.[43][52]
  • Fourteenth defeat (amendment 70): A proposal to create a parliamentary committee to sift certain regulations introduced under the legislation to recommend whether they require further scrutiny of Brexit statutory instruments was passed by 225 to 194 – a majority of 31.[43][53]

On 30 April, a proposal to advance a second EU Referendum (amendment 50) was rejected by the Lords 260 votes to 202 – a majority of 58.[54]

House of Lords Third Reading[edit]

During the Third Reading on 16 May 2018, the Government suffered its 15th defeat in the Lords which, including the Commons Committee defeat,[18] meant 16 defeats overall. The bill then passed the Third Reading.[27]

Consideration of Amendments[edit]

The Commons debated the amendments proposed by the Lords on 12 and 13 June.[55] A majority voted to reject 14 of the 15 Lords amendments and accepted only one,[56] which pertained to preservation of relations with the EU.[57] The government also agreed to accept an amendment encouraging the negotiation of a customs arrangement with the EU[58] and further compromised with amendments concerning the issues of Northern Ireland, scrutiny, the environment and unaccompanied child migrants.[57] A government-backed amendment allowing legal challenges on the basis of EU law for the three period following Brexit also passed.[57] It was also agreed that any withdrawal agreement with the EU would not be implemented without Parliament approval and if there was no such approval, a minister will make a statement setting out how the Government “proposes to proceed” within 28 days.[57]

On June 18, the House of Lords passed another "meaningful vote" amendment similar to the one rejected by the House of Commons which allows a parliament vote on Brexit in case no UK-EU Brexit deal was reached, this time reworded so it wouldn't involve only a "neutral motion."[59] This amendment was later defeated by the Commons on June 20 in a 319-303 vote.[60][61] It was also agreed that Commons Speaker John Bercow would have more say in the Brexit process.[62] The same day, the Lords agreed to accept the government's EU Withdrawal Bill, thus paving the way for it to become law upon Royal Assent.[63]

Royal Assent[edit]

The bill currently awaits Royal Assent.

Henry VIII clauses[edit]

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.[64][65] 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 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).[66]:§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.[66]:§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.[67] 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.[68]

The bill also allows ministers to make statutory instruments without presenting drafts to Parliament in certain cases deemed urgent.[66]: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.[69]

Impact on devolution[edit]

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.[66]: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.[67] 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.[70]

The Scottish Parliament voted by a large majority to not give consent to the bill in the method provided through the Sewel Convention, meaning that ordinarily the British Government should remove the parts of the bill that have an impact on Scottish devolved matters. However, for the first time in the history of devolution, the British Government has overridden the provisions of the Sewel Convention - leading to increase tension between the Government of Scotland and Theresa May's administration.[71]

Good Friday Agreement[edit]

On Wednesday 2 May 2018, the government was defeated in the House of Lords on an amendment which required that ministers and the final Brexit settlement should comply with and honour the terms of the Northern Ireland Act 1998, which embodies the Good Friday Agreement.[72][73]

EU case law[edit]

At present, case law emanating from the Court of Justice of the European Union (CJEU, formerly and still commonly known as the ECJ) is binding on UK courts. The bill will have ECJ case law retained as part of the law, but it would no longer be (automatically legally) binding on the Supreme Court of the United Kingdom and in certain circumstances also on the High Court of Justiciary of Scotland, and it would also allow the courts to depart from it, after applying the same test as they would apply in deciding whether to depart from their own case law. CJEU ("ECJ") judgments made after the date of exit will no longer become binding in the United Kingdom.

Human rights laws[edit]

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.[66]:§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.[69][74]

Additional repeals[edit]

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

Amendments[edit]

The bill proposes amendments to the following Acts:

See also[edit]

Notes[edit]

  1. ^ —(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)."

References[edit]

  1. ^ Hansard[1]
  2. ^ a b c House of Commons Library Briefing Paper on Second Reading https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8079
  3. ^ Stewart, Heather (12 July 2017). "Labour threat to defeat Theresa May over Brexit bill" – via The Guardian. 
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  11. ^ a b Staff writer (12 September 2017). "Brexit: EU repeal bill wins first Commons vote". BBC News. 
  12. ^ a b c (now), Andrew Sparrow; (earlier), Nicola Slawson (12 September 2017). "Government wins vote on EU withdrawal bill with majority of 36 - as it happened" – via www.theguardian.com. 
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  50. ^ "European Union (Withdrawal) Bill: Division on Amendment 93". Parliamentary Debates (Hansard). House of Lords. 8 May 2018. 
  51. ^ "European Union (Withdrawal) Bill: Division on Amendment 95". Parliamentary Debates (Hansard). House of Lords. 8 May 2018. 
  52. ^ "European Union (Withdrawal) Bill: Division on Amendment 110A". Parliamentary Debates (Hansard). House of Lords. 8 May 2018. 
  53. ^ "European Union (Withdrawal) Bill: Division on Amendment 70". Parliamentary Debates (Hansard). House of Lords. 8 May 2018. 
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  60. ^ https://www.bbc.com/news/uk-politics-44542156
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External links[edit]

European Union (Withdrawal) Bill: interim report] (published 7 September 2017)

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