Open Britain Background Briefing: The EU (Withdrawal) Bill

Overview

This Open Britain briefing provides an overview of the European Union (Withdrawal) Bill, often referred to informally as the ‘Repeal Bill’, which will have its second reading on Thursday 7 September and Monday 11 September. The bill can be found here, and the accompanying documents are online here.

In short, the Bill seeks to repeal the European Communities Act 1972 and to transpose EU laws onto the UK statute book. The House of Commons Library has called the bill "one of the largest legislative projects ever undertaken in the UK” and predicts that "major swathes of the statute book" will need to be examined to see how they will work after March 2019.[1] It  will be a key battleground for debates over Britain’s future relationship with the EU, and for the kind of country the UK will be after March 2019.

This paper provides an overview of the contents of the bill and what it aims to achieve, as well as a timeline outlining how the bill is intended to pass through Parliament. It then highlights nine key issues over which there is expected to be significant debate on the floor of the Commons and the Lords and where there is scope for amendments to be made. It also provides the APPG on EU Relations’ position on each key issue. 

The Bill and its Implications

Aims of the bill

If passed, the bill will achieve three things. It will:

  1. Repeal the 1972 European Communities Act, which at present provides legal authority for EU law to have effect in UK law. Clause 1 of the bill reads simply: “The European Communities Act 1972 is repealed on exit day”, though there is some controversy over who can determine when this comes into force (see ‘Criticism of the Bill’ below).
  2. Transpose EU laws into UK law. This seeks to ensure that EU laws and regulations made while the UK was a member will continue to apply after exit day. Clauses 3 and 4 of the bill propose that all direct EU legislation operative before exit day survives in UK law, and that all rights and remedies available under EU law are also retained, unless there is a specific reason to abolish them.
  3. Grant ministers the power to change transposed EU-law using secondary legislation. The Government proposes to confer on ministers the ability to modify elements of EU law once they are incorporated into UK law through the extensive use of secondary legislation (in the form of statutory instruments), which is subject to less scrutiny by MPs and Parliament.

The Scale of the Challenge

The triggering of Article 50 in March 2017 means Government and Parliament face the challenge of converting the body of EU law into UK law in time to ensure legal continuity when Britain leaves the European Union in March 2019. Without this, EU-derived rules and regulations governing everything from employment law to financial services would no longer have legal standing in the UK after exit day, leading to uncertainty, confusion and legal chaos.

Estimates suggest that around 12,000 EU regulations will need to be transposed into UK law through the bill. In addition, Parliament has passed 7,900 statutory instruments implementing EU legislation and 186 acts which incorporate a degree of EU influence. These will also need to be addressed through the bill. The total body of European law, dating back to 1958 – known as the Acquis Communautaire – binds all member states and in 2010 was estimated to consist of about 80,000 items. This includes regulations, directives and European Court of Justice (ECJ) rulings. Different types of EU legislation work in different ways, and are treated differently by the Bill.

 

Timeline

The bill will have its Second Reading in the Commons on Thursday 7 September and Monday 11 September. It will then be looked at by the Committee of the Whole House. Amendments on a wide range of issues are expected to be proposed to the bill, many of which are discussed in further detail below.

The bill is expected to come into force on the day Britain leaves the European Union, which is currently slated to be 29 March 2019. Once the bill becomes an act, the Government will begin introducing the secondary legislation it says it needs. 

Potential Crunch Points

1.       Secondary legislation (Henry VIII powers)

What is the issue?

The explanatory notes for the bill state the following: “There will also be cases where retained EU law will cease to operate as intended or will be redundant once the UK leaves the EU. For this reason, the Bill includes a power to enable ministers to correct problems arising from withdrawal by way of making regulations by statutory instruments.”[2] 

The bill includes provisions allowing the use of statutory instruments (otherwise known as secondary legislation, delegated legislation or Henry VIII powers) to modify elements of EU law once they are incorporated into UK law. The Government estimates that between 800 and 1,000 Statutory Instruments will be needed to amend different areas of EU law once they are transposed into UK law.[3]

Open Britain’s view

Open Britain believes Parliament must have the time and opportunity to scrutinise the potential consequences of this Bill in full detail. Furthermore, Parliament must not be side-lined during the process of ‘correcting’ retained EU law. The bill must not be turned into an unprecedented ministerial power-grab.

 

2.       Article 127 / EEA no notification

What is the issue?

Article 127 of the EEA Agreement outlines the withdrawal procedure for members of the European Economic Area. The explanatory notes of the bill state that the UK will withdraw automatically from the EEA on ‘exit day’: “The UK is a member of the EEA by virtue of its membership of the EU. Therefore, on exit day the UK ceases to participate in the EEA Agreement.”[4] However, Article 127 states that formal notice is required: “Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing.”[5] 

This disagreement may mean that the Government cannot withdraw Britain from the EEA legally without forewarning. It is likely to create diplomatic tensions between the EEA/EU and Britain during  its withdrawal period. 

Open Britain’s view

There is an ongoing legal debate over whether the UK is required to give notice to the EEA of its intention to leave under Article 127. The bill ignores this issue, but this question should be subjected to proper levels of parliamentary scrutiny. 

 

3.       Repeal of EU Charter of Fundamental Rights from UK law

What is the issue?

The bill states that: “The Charter of Fundamental Rights is not part of domestic law on or after exit day.”[6] The EU Charter of Fundamental Rights includes all the established rights of every individual within the EU. As these various rights were established at different times, in different ways and in different forms, the Charter of Fundamental Rights condenses them into one document which was included in the 2009 Treaty of Lisbon, thus making these rights legally binding on the EU institutions and member state governments. 

Open Britain’s view

The Charter of Fundamental Rights guarantees all rights protected by the EU, including the European Convention of Human Rights, as well as forward-looking rights on issues like data protection. By removing it after Brexit, the bill seeks to limit the ability to enforce these rights. We are clear that the bill should not be used to remove these rights. 

 

4.       Euratom 

What is the issue?

The Government has committed to withdrawing from Euratom, as we leave the EU. Where Euratom is mentioned in the text of EU law, the bill gives British ministers the power to change the wording and identify appropriate U.K. bodies to take on those roles. 

Open Britain’s view

Nuclear cooperation through Euratom is vital for the UK's nuclear industry, as well as for a number of other areas such as the safe transfer of radioactive isotopes used in cancer treatment. The bill should not put this at risk. 

 

5.       Removal of the right to sue the Government

What is the issue?

The Bill states that: “There is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich.”[7] Francovich refers to a 1991 ruling by the ECJ stipulating that a member state is liable if an individual or business has been damaged because of a failure by that country to implement EU law. This ruling allows businesses or individuals to sue their government for financial compensation if they have been damaged financially by a government’s failure to implement EU rules.

Open Britain’s view

Removing the rights of individuals to seek financial redress from their government does not seem consistent with the mantra of 'taking back control'. The bill should not threaten the right of British citizens to sue their own government, nor should it put the government above the law. 

 

6.       Stripping away of EU citizens’ rights if ‘no deal’

What is the issue?

The explanatory notes of the bill state: “The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals.”[8] The bill therefore opens up the possibility that, in the event of a Brexit ‘no deal’ scenario, statutory instruments could be used to remove the rights of EU citizens living in the UK whilst avoiding parliamentary scrutiny.

Open Britain’s view

European citizens living in the UK contribute huge amounts to the economy and public services of this country. But much more than that, they are our neighbours, our colleagues, our friends and our family. The bill should not allow the Government to remove their rights, especially not without proper parliamentary scrutiny. Such an action could also endanger the rights of British people living in the EU. 

 

7.       Definition of ‘exit day’

What’s the issue?

The two-year timetable of Article 50 indicates that Britain will leave the EU on 29 March 2019. However, the bill refers only to “exit day”[9] and does not designate a refer to a specific date. The 29 March 2019 is therefore not a legally-binding deadline, and Britain’s exit could be earlier or later, and completed without proper Parliamentary oversight or a vote by MPs. This is potentially a major issue, as the very first clause of the bill says: “The European Communities Act 1972 is repealed on exit day.” But the “exit day” is defined as “such day as a Minister of the Crown may by regulations appoint.” This could implicitly remove the right of Parliament to have the final say on the exit deal – something which was guaranteed to MPs before the passage of the Article 50 Bill.

Open Britain’s view

The bill gives ministers the power to decide on the exact date of 'exit day', i.e. the date of the UK's departure from the EU. The power to make this decision should be subjected to full Parliamentary scrutiny, not given over to ministers to decide unilaterally. 

 

8.       Devolved administrations

What’s the issue?

Members of the Scottish Parliament and the Welsh Assembly have expressed concern that the Government could curtail devolved administrations’ power following its exit from the EU. Under the Bill, devolved administrations would be given power to amend devolved legislation, in order to correct laws that do not operate appropriately following Brexit. However, concerns have been raised that the Bill currently prevents devolved administrations from making changes that are "inconsistent" with those made by the UK government. This could limit the power of the devolved governments.

Open Britain’s view

There are serious concerns about the bill’s potential to strip powers away from the devolved administrations. It must not be used as an excuse for ministers to grab devolved powers.

 

9.       Dilution of workers’ rights

What’s the issue?

The Bill says that EU-derived rights and protection will be transposed in full into UK law. Section 4 of the Bill deals with “Saving for rights etc. under section 2(1) of the ECA.”[10] It assures that, “Any rights, powers, liabilities… which, immediately before the exit day, are recognised and available in domestic law… and are enforced, allowed and followed accordingly, continue on and after exit day to be recognised and available in domestic law. But the bill also makes clear that a future UK Government could change its mind on environmental protections and simply strip them away as they saw fit.

There are real concerns about the future retention of current rights on holiday pay, equal treatment for agency workers, and safeguards for workers when companies are restructuring. 

Analysis

The bill could see ministers given the power to change, dilute or strip away workers' rights, as well as other areas such as consumer and environmental protections under Henry VIII powers. Any potential changes in these areas must be subject to full parliamentary scrutiny as primary legislation and not performed by ministers behind closed doors. This bill must not become an excuse to undermine existing standards.