|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 extent||United Kingdom
(England and Wales, Scotland, Northern Ireland)
Gibraltar (with some extensions[a])
|Bill citation||HC Bill 5 2017-19|
|Bill published on||13 July 2017|
|Introduced by||David Davis, Secretary of State for Exiting the European Union|
|First reading||13 July 2017
(in the House of Commons)
|Second reading||7 and 11 September 2017
(in the House of Commons)
|Third reading||17 January 2018 (in the House of Commons)|
|White paper|| |
|European Communities Act 1972|
|Part of a series of articles on the|
The European Union (Withdrawal) Bill,[b] also known as the Repeal Bill or the Great Repeal Bill, is a bill of the Parliament of the United Kingdom that proposes to implement the country’s exit from the European Union (Brexit) by repealing the European Communities Act 1972 which first brought the UK into what became the 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.' 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'.
To provide legal continuity, it will also transpose directly-applicable already-existing EU law into UK law, and so 'create a new category of domestic law for the United Kingdom: retained EU law'. It will also 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, and completed its passage through the Commons on 17 January 2018, by passing the Third Reading by 324 votes to 295. It has completed First and Second Readings and Committee Stage in the House of Lords, and Report Stage is scheduled to begin on 18 April 2018.
A white paper published on 30 March 2017 stated three objectives for the proposed Repeal Bill:
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 It would smooth the transition by ensuring that all laws remain in force until specifically repealed.
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.
The second reading and debate on the bill began on 7 September 2017. The debate and second reading resumed on 11 September. Shortly after midnight on 12 September, the second reading passed by a margin of 326 to 290, a majority of 36 votes, after an amendment proposed by the Labour Party was rejected by a margin of 318 to 296. A motion to put the Bill under eight days of Committee scrutiny passed 318 to 301.
The Committee stage was originally scheduled to take place after MPs returned to Parliament following the conclusion, in October, of their respective party conferences. However, House of Commons leader Andrea Leadsom announced on 26 October that the committee stage was to begin on 14 November. Committee stage began as scheduled on 14 November as a Committee of the Whole House, and completed on 20 December 2017.
MPs tabled more than 470 amendments to the bill, 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. 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. 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". If no time is specified, it was to be "the beginning of that day". 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, the government accepted a further amendment that "A Minister of the Crown may by regulations amend the definition of 'exit day' ", allowing for flexibility in the event of a transitional deal, or extra time being needed in the negotiations.
The bill had its First Reading in the Lords on 18 January 2018, and Second Reading on 30 and 31 January 2018, and committed to a Committee of the Whole House. This is scheduled to last for ten days between 21 February and 26 March.
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. 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
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.:§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. 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.
The bill also allows ministers to make statutory instruments without presenting drafts to Parliament in certain cases deemed urgent.: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.
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.:ch.4 However, the bill also prevents devolved administrations from making changes that are "inconsistent" with those made by the UK government.: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. 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.
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.:§6
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.:§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.
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.:p.10
In addition to the repeal of the European Communities Act 1972, the bill also proposes to repeal the following Acts:
The bill proposes amendments to the following Acts:
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.
European Union (Withdrawal) Bill: interim report] (published 7 September 2017)
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