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European Union (Withdrawal) Bill – does it do what it says on the tin?

07/08/2017
The European Union (Withdrawal) Bill had its first reading in July, with a 2nd scheduled for September. While its proposed aim to freeze EU law in the UK was simple, it still leaves many questions unanswered as to how Brexit will work.

The European Union (Withdrawal) Bill 2017 – commonly known as the Great Repeal Bill – had its first reading on 13 July 2017, with a second reading scheduled for 7 September 2017 (shortly after Parliament returns from the Summer recess).  While its proposed aim, to freeze EU law in the UK as at Brexit day, was simple, the Bill itself is far more complicated than some will have realised, and still leaves many questions unanswered as to how Brexit will in fact work.

While the Bill starts simply enough, with section 1 consisting only of "The European Communities Act 1972 is repealed on exit day", it rapidly becomes obvious that converting the existing state of EU law as in force in the UK into domestic law is not that simple.  The most contentious provisions of this are the extensive "Henry VIII" powers (whereby secondary legislation is able to amend primary legislation) in section 7 onwards which are given to the Government to amend any 'deficiencies' in retained EU law, including redundant provisions, reciprocal arrangements with the EU, and "EU references which are no longer appropriate".  However, these powers will only be in place for two years from exit day.  While a time limit on the powers may seem like a sensible curb on their use, there is some concern as to whether this will be enough time.  These powers do not seem to extend to amending provisions of domestic legislation that implemented EU legislation without direct reference to that legislation, but the number of cross-references to EU law alone that will need to be checked and amended is enormous.  Some commentators have predicted that this could take as long as 10 years.

The use of these Henry VIII powers is highly contentious, and this time limit appears to be the worst of both worlds. Such broad Henry VIII provisions give huge power to the Government to remove the EU from domestic legislation, but still may not give them enough time to finish the job (or at least finish it well).  Under schedule 7 many of these powers also need to go through the positive resolution procedure, requiring resolutions approving them in both Houses of Parliament, and some may require approval by the devolved assemblies, such as the Scottish Government.  The time this will take raises fears of either inadequate time to complete the process, or a rush of poorly drafted legislation.

However, the work does not start after exit day. In order to allow the Government and Parliament at least to start this process on time, Schedule 5 also requires the Queen's Printer (part of the National Archives) to make arrangements to print every EU regulation, decision and tertiary legislation (i.e. decisions and implementation measures) published before exit day.  While a seemingly simple and common sense provision, this will be a huge undertaking both to collate the instruments and then sort those that apply to the UK.

Once the Bill is passed (which in itself is likely to be a challenge, given the debates already ongoing about the role of the Charter of Fundamental Rights and other core pieces of EU legislation), there are also likely to be disagreements over some of the drafting. The Bill allows for various classifications of law: direct EU legislation, retained case law, retained EU case law, retained EU law and retained general principles of EU law.  While these descriptions are certainly logical, and on their face appear to be useful, it is easy to see how disagreements over individual provisions may erupt if they do not fit neatly into these categories. 

There are also several terms of art in the Bill that were undoubtedly drafted deliberately broadly, but it is also foreseeable that these may create challenges in future. For example, while section 5(4) prevents the Charter of Fundamental Rights from being considered domestic law, the next paragraph goes on to state that this does not affect the retention of "any fundamental rights or principles which exist irrespective of the Charter".  While attempting to define what these rights and principles are would undoubtedly create both political and legal difficulties, it is also possible to see how this could result in several legal challenges as to whether a point of law is a fundamental right or principle.  In addition, schedule 1 paragraph 4 states that "there is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich." While this presumably relates to an EU member state's liability to pay damages to citizens who suffer loss due to a failure to transpose EU law, the lack of even a cross-reference to the ECJ decision, let alone a precise definition of the principle, will undoubtedly lead to challenge in the courts.

None of this is intended as a slight to the drafters; the preparation of this Bill has to be one of the most difficult, comprehensive and crucial pieces of legislative drafting undertaken, and will then be followed by even more complex drafting as references to the EU are removed from other legislation.  However it is highly unlikely that even the best drafting will be able to prevent long, drawn out battles in both Parliament and the courts.

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