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What have we learnt from today's publication of the Repeal Bill?

  • United Kingdom
  • Brexit

13-07-2017

Described by Theresa May as an “essential step” on the way to the UK leaving the EU, today the Government has published the initial text of the European Union (Withdrawal) Bill (or, Repeal Bill as it’s widely known) which aims to ensure that European law will no longer apply to the UK after Brexit. Until today, we have only seen a high level summary of this Bill in the Government’s White Paper issued in March this year.

There are three main aims of the Bill:

1. It repeals the European Communities Act 1972 on the exit day.

The European Communities Act 1972 is the basis for European law having precedence over laws passed in the UK Parliament and gives the European Court of Justice jurisdiction. The Bill is definitive, stating in section 1 that the European Communities Act 1972 is repealed on exit day. It should be noted that exit day is not necessarily 29 March 2019, but is defined as the day a Minister of the Crown may by regulations appoint.

Section 6 of the Bill sets out matters relating to interpretation of retained EU law. A UK court or tribunal will no longer be bound by any principles laid down, or any decisions made, on or after exit day by the European Court and a UK court or tribunal cannot refer any matter to the European Court of Justice on or after exit day. Section 6(2) does not restrict a UK court or tribunal from looking to EU decisions after exit day where considered appropriate to do so. Questions of validity, meaning or effect of retained EU law (where unmodified, or where the retained case law is consistent with any subsequent modification) is to be decided in accordance with any retained case law and any retained general principles of EU law having regard to the limits, immediately before exit day, or EU competences. However, section 6(4) states that the Supreme Court is not bound by any retained EU case law, the High Court of Justiciary is not bound by any retained EU case law (in certain circumstances) and no court or tribunal is bound by any retained domestic case law that it would not otherwise be bound by. In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.

2. It seeks to copy over into domestic UK law all existing direct EU legislation and EU-derived domestic legislation so far as operative immediately before the exit day to avoid a black hole in the UK statute book.

One notable exception is the specific exclusion of the Charter of Fundamental Rights of the European Union from domestic UK law on or after exit day.

Section 5(2) provides that the supremacy of EU law continues to apply on or after the exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day. Notwithstanding, the Bill specifically provides that there will be no right in domestic law on or after exit day to damages in accordance with the rule in Francovich v Italy (1991) C-6/90, a decision which established the principle of State liability.

On a procedural note, the Bill requires the Queen’s Printer to publish each relevant EU regulation, EU decision and EU tertiary legislation before exit day as well as the relevant international agreements, being the Treaty on European Union, the Treaty on the Functioning of the European Union, the Euratom Treaty and the EEA agreement.

3. It creates delegated powers to make secondary legislation.

The Bill grants powers to amend and repeal these laws using what have been described as Henry VIII powers, giving a Minister of the Crown power to make any provision that could be made by an Act of Parliament. These delegated powers are in place to deal with deficiencies in the transposition of EU law into national law.

In particular, sections 7, 8 and 9 of the Bill, in conjunction with the restrictions set out in Schedule 7, set out the circumstances in which a Minister of the Crown acting alone or jointly with the devolved authorities, may make regulations to amend, modify or repeal EU laws, or even create new laws.

Section 7 sets out the powers a Minister of the Crown may exercise to deal with deficiencies arising from withdrawal. These can arise due to the failure of retained EU law to operate effectively, or any number of additional deficiencies such as impractical application in relation to the UK, redundancy, deletion of the requirement for reciprocal arrangements between the UK and the EU or a Member State which are no longer appropriate, among others. Section 7(3) makes clear that retained EU law is not deficient merely because it does not contain any modification of EU law which is adopted or notified on or after exit day.

There are limitations on the regulations that may be made under section 7. Most importantly, there is a two year time limit. In addition, regulations may not impose or increase taxation, make retrospective provision, create a relevant criminal offence, amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or amend or repeal the Northern Ireland Act 1998.

In addition, Schedule 7 of the Bill sets out certain circumstances where a regulation passed by a Minister of the Crown or a devolved authority acting alone requires approval by resolution of each House of Parliament. This largely relates to circumstances where a regulation establishes or changes the role or function of a public authority in the UK, creates or widens the scope of a criminal offence or creates or amends a power to legislate.

Other regulations made under section 7 by a Minister of the Crown or a devolved authority acting alone are not required to be laid before each House of Parliament, but are subject to annulment in pursuance of a resolution of either House of Parliament. Reciprocal provisions apply for the devolved authorities. Where a regulation is made by a Minister of the Crown and the devolved authority acting jointly, there are scrutiny provisions set out in Schedule 7 which can result in annulment of a regulation.

Section 8 allows a Minister of the Crown to make new laws that the Minister considers appropriate to prevent or remedy any breach, arising from the withdrawal of the UK from the EU, of the international obligations of the UK within the two year time limit after the exit day. Again, Schedule 7 to the Bill sets out certain measures which provide for scrutiny by the Houses of Parliament.

Section 9 may be the most controversial of the so-called Henry VIII powers as it provides that a Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day. This gives the Ministers sweeping powers to pass new laws prior to the exit day and it includes the ability for a Minister to amend the Act itself. The Bill confers powers to make regulations involving devolved authorities to the relevant devolved authorities, provided that the regulations made are determined jointly with a Minister of the Crown. Similar to section 7, there are checks and balances set out in Schedule 7 which would allow scrutiny of the Houses of Parliament for any regulations passed by a Minister of the Crown.

Next steps:

Today is just the start of the largest legislative project ever undertaken in the UK because, despite what the Government has said, the body of EU law is found in a number of different places and in a number of different forms and much of it will not work on exit because it refers to EU institutions which will no longer have jurisdiction over the UK (or may have jurisdiction if agreed under any exit deal). The Bill has set out a two year time limit from the exit day, but it is unclear whether that will be sufficient to complete this project.

There is, then, the added constraint of the need to include the devolved administrations in agreeing how policy powers are repatriated to the UK from the EU and then distributed between the nations of the UK. Within hours of publication of the Bill, the Scottish and Welsh first ministers released a joint statement in which they took issue with new restrictions on amending EU laws which are returned to the UK after the exit date. In particular, Section 1(b) of Part 1 of Schedule 3 of the Bill, which implements an amendment to the Scottish Act 1998 with the words “A member of the Scottish Government has no power to make, confirm or approve any subordinate legislation so far as the legislation modifies retained EU law”, was singled out as a new restriction on the devolved administration’s powers.

The wording of the Bill will now be debated as it passes through both Houses of Parliament, with more detailed scrutiny in select committees. The plan is for it to be passed ahead of the UK’s exit from the EU, but to become law only when the UK actually leaves. This may be subject to transitional arrangements which are yet to be negotiated or agreed with the EU.

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