Members of Parliament returned to Westminster on Tuesday and to a legislative programme dominated by the ‘Brexit Bills’ announced in the Queen’s Speech back in June. Unusually, and to facilitate the legal process for withdrawing from the EU, the parliamentary session will last for two years instead of the usual one year.
The first item on the Brexit legislative agenda today will be the ‘second reading’ of the European Union (Withdrawal) Bill that the government introduced into Parliament in July. The second reading will be the first opportunity for MPs to debate the aims and principles of the legislative proposal.
Previously known as the ‘Great Repeal Bill’, the ‘Withdrawal Bill’ has different aims as set out in the government’s earlier White Paper back in March, and as explained in a briefing paper for MPs. As its previous name suggests, one of the functions of the Bill is formally to repeal the European Communities Act 1972 – the Act which gives domestic legal effect to the UK’s membership of the EU.
In one sense the repeal of the 1972 Act is a measure of domestic housekeeping as the UK’s withdrawal from the EU under the Article 50 process will ensure that, as a matter of EU law, the EU treaties and laws made under them will cease to apply to the UK on withdrawal day.
Indeed, it was the basis of the Supreme Court’s ruling in the Gina Miller case, that once Article 50 is triggered and the UK leaves the EU, the rights created by the treaties and which flow into UK law via the 1972 Act are cut off at source. However, the Bill also replaces the 1972 Act as the new constitutional and legal means by which – as a matter of domestic law – the UK will articulate its post-Brexit relationship with EU law.
The intention of the government is not to strip EU law from the UK statute book but rather the opposite. In her Lancaster House speech in January, the Prime Minister Theresa May set out the aim behind the legislation: ‘The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper parliamentary debate.’ With a view to providing legal certainty, the Bill will domesticate EU law, creating a body of law to be known as ‘retained EU law’.
The challenge facing government lawyers and legislative drafters is immense given that EU law is derived from a range of legal sources: from the EU treaties, to the regulations and directives adopted by the EU’s institutions over 60 years. Some of this EU law is already contained in UK law by rules made under the 1972 Act.
With the repeal of that Act, the Bill creates a means of preserving those rules in domestic law. Otherwise, EU law needs to be converted into domestic law. To take an analogy, the goal is similar to that facing the executors of an estate who are tasked with taking legal control over all the possessions and assets of the deceased before deciding what to do with them.
Although the preservation and conversion of EU law presents a largely technical challenge, one of the criticisms of the Bill is that its provisions are simply too encompassing ,appear complex and lack clarity. However, the principal criticisms of the Bill focus more directly on the constitutional impact of the Bill on two important power relationships: between government and parliament, and between national and sub-national governments. In short, the claim is made that the Bill represents a Whitehall ‘power grab’.
For parliamentarians, the anxieties concern the powers granted to UK Ministers to make changes to this body of retained EU law and related domestic law to deal with any deficiencies and inadequacies in the legal framework that emerge as the UK leaves the EU.
The Bill also allows Ministers to use such ‘delegated powers’ to make changes to implement any withdrawal agreement negotiated between the UK and the EU. Particularly where Ministers use delegated powers to amend primary legislation passed by the UK Parliament – so called ‘Henry VIII’ powers – the accusation can be made that changes in domestic law will not have the ‘full scrutiny and Parliamentary debate’ promised by the Prime Minister.
Meanwhile for the devolved governments, the Bill presents a different constitutional challenge. The role of UK ministers in negotiating at EU level on matters that fall within the policy competences of the devolved governments has long been a source of tension. With powers being repatriated to the UK after Brexit, the devolved governments are keen to ensure that these powers continue to flow downwards and do not simply come back to Whitehall.
The devolved governments do have a point of leverage in their quest to stop UK ministers retaining powers they believe should be devolved – the Legislative Consent Motion. It is a constitutional convention – formalised for Scotland in the Scotland Act 2016 – that Westminster should not legislate on a matter within the legislative competence of the devolved parliaments without first obtaining the consent of the devolved parliaments.
It has been accepted by UK ministers that this consent will be sought. However, this is not a potential veto power. Nothing stops a sovereign Westminster from passing a Withdrawal Bill without having obtained legislative consent from the devolved parliaments, and as the Supreme Court made clear in the Miller case, such conventions are recognised but not enforced by courts.
Perhaps the most surprising inclusion in the Bill is a clause that puts the supremacy of EU law on a legislative basis. Although limited to provisions of EU law enacted before the UK leaves the EU, it is remarkable that after forty years of EU membership and failed attempts by parliament to constrain the supremacy of EU law, for the very first time, UK legislation will formally recognise the supremacy of EU law over provisions of UK law.
For some, what is crucial about the Bill is that it is an exercise of sovereignty which encapsulates the referendum message of ‘taking back control’. Nonetheless, for others, if this exercise in sovereignty is simply designed to keep everything the same after Brexit, it may be less obvious why the UK is leaving the EU in the first place.
Whatever one’s view, it will be in the Palace of Westminster that Brexit will be debated in the weeks ahead. And although the chimes of Big Ben will be silent, the clock is ticking for an orderly departure from the EU. Brexit time is pressing.
By Kenneth Armstrong, Professor of European law at the University of Cambridge and author of the recently published Brexit Time – Leaving the EU: Why, How and When? He writes a companion blog at brexittime.com.