The EU (Withdrawal) Bill 2017 – formerly known as the Great Repeal Bill – may be the least popular piece of legislation ever laid before Parliament. It is currently subject to over 400 amendments, and there is some doubt about how it will fare when it hits the commitee stage next week.
The aim of the Bill is simple and can be expressed in three words. It will repeal (the European Communities Act (ECA) 1972 which took us into the EU in the first place); convert (the content of EU law into UK law, thus ensuring the continuity of law and legal certainty); and correct (those bits of EU law which will not work on Brexit day). Given these laudable objectives, what accounts for its lack of fans?
The Bill is disliked by Remainers who see it as the next nail in the coffin of their hopes to stay in the EU. It is disliked by (some) Leavers who argue that the section on “correction” confers too much power on the executive, not Parliament, through so-called “Henry VIII” clauses. The use of these Henry VIII clauses, they say, undermines the idea that Brexit is about taking back control to Parliament. They worry how these powers might be used by ministers, especially if there is a change of government.
The Bill is also disliked by the devolved administrations, who see it as a power grab by Westminster. Last but not least, anyone who has tried to read the thing is guaranteed to hate it.
So given this coalition of the unwilling, should the Bill be dispatched to meet its maker? The simple answer is no. The EU Withdrawal Bill is essential for delivering Brexit at domestic level. Without it, there will be a chaotic Brexit, involving enormous uncertainty for businesses, employers, consumers and citizens.
Without the Bill, EU law will continue to take precedence over conflicting national law (the so-called doctrine of supremacy) and will continue to be enforceable in the UK courts without any ability by the UK to influence the nature of those rules as a result of the continued application of the ECA 1972. This is exactly what many Leavers voted to stop.
Not to worry, opponents might say; we can pass a one-clause Act repealing the ECA 1972, without all the complex scaffolding which goes along with it in the Withdrawal Bill (“repeal”).
Not so fast. Vast swathes of EU law have been given effect to in UK law via so-called s.2(2) powers which are found in the ECA 1972. So, for example, the Consumer Protection from Unfair Trading Regulations 2008 and the Public Contracts Regulations 2015 (on public procurement) were adopted under s.2(2) powers, as were the Immigration (European Economic Area) Regulations 2016 giving rights to EU nationals and parts of the Water Supply (Water Quality) Regulations 2016. If the ECA is repealed, s.2(2) of the Act will, by definition, be repealed too, taking with it all the EU rules adopted under s.2(2), rendering them invalid. A legal vacuum would ensue.
Fear not! our dissenters might cry. Our one clause Act could have a second one, preserving measures adopted under s.2(2) (“convert”). But that is more complex than it sounds, because a number of those preserved Regulations currently make reference to EU law and EU institutions.
Take, for example, the Water Supply Regulations, which stipulate that under certain circumstances the Secretary of State may inform a water supplier that it does not need to monitor a “radioactive parameter”. However, should the Secretary of State take that decision, he or she must inform the European Commission. But we are leaving the EU and it is not clear we should not be telling the European Commission anything. Therefore the UK must have the power to edit pre-existing legislation. And since Parliament does not have the time to go through thousands of Regulations to see if bits and pieces need correcting, wouldn’t it be sensible to get the executive to do the donkey work, with some oversight by parliament (“correct”)?
There is a further point too. If the Commission is not to be notified by British companies, who is? The answer is a Westminster agency and/or newly created agencies in the three devolved administrations. And if those agencies all need to be set up, they’ll need terms of reference, a constitution, staff. Again, Parliament does not have the time to do this, but the executive should have powers to act.
Then, before you know it, your new slimmed down Bill starts to look increasingly like the European Withdrawal Bill and you begin to recognise that your opposition to it may in fact be ill founded.
And there is one other nagging voice in the back of your mind: what if the Prime Minister is as good as her word and decides that no deal really is better than a bad deal? So she walks away from the negotiating table, the Article 50 clock runs down, and the UK falls out of the EU on 29 March 2019. All the staff you employ from EU countries become illegal migrants overnight. This means that you may be committing a criminal offence by employing them and may be liable to substantial civil penalties.
In that instance you would be immensely relieved that the Withdrawal Bill provides a safety blanket, at least for the time being, by ensuring that The Immigration (European Economic Area) Regulations 2016 will still be part of UK law, so your EU staff continue to enjoy the status of EU citizens.
Then you might start to think that the Withdrawal Bill is not so bad after all; indeed you might recognise that it is necessary to help smooth the bumps in the road over the next few years and to deliver Brexit in the way the 52 per cent voted for it. You might start to wonder why you ever thought otherwise.
By Catherine Barnard, senior fellow at The UK in a Changing Europe and professor of EU law at Trinity College, Cambridge.