Cross-posted with the Constitution Unit blog.

Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017. The Bill is a complex mixture of constitutional change and legal continuity. This post highlights some of its main elements.

Constitutional change

The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the “conduit pipe” through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:

• the creation of a new distinct body of law known as “retained EU law”;
• broadly-framed delegated powers for Government to alter this body of law;
• new instructions to the courts on how to interpret retained EU law; and
• amendments to the legislation that underpin devolution.

Legal continuity

The Government’s position is that the primary purpose of the Bill is to provide a “functioning statute book”, ensuring legal continuity after exit day. The Bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.

Balancing continuity and change

Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) “wholesale” through this Bill, the Government has claimed that the general rule is that the “same rules and laws” will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:

• the delegated powers in the Bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
• a proportion of EU law will no longer apply once the UK is outside the EU;
• the Government is bringing forward a number of Bills to make substantive policy changes in areas currently covered by EU law; and
• preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU Member State and subject to the full force of EU law.

A new category of law: “retained EU law”

The Bill’s overall purpose is to ensure legal continuity after Brexit. To do this clauses 2, 3 and 4 create a new body of law known as ‘retained EU law’ which comprises domestic legislation giving effect to EU law, which is to be preserved, and direct EU legislation, which is to be converted. This new and distinct category of law will have its own particular characteristics, and much of the Bill is devoted to creating rules and practical arrangements for how it will work.

Clause 2 keeps domestic legislation that implements EU law on the statute book post-Brexit. This is necessary as otherwise the provisions of secondary legislation passed under the delegated powers in the ECA would be lost upon the 1972 Act’s repeal. The provision also preserves other primary and secondary legislation passed in order to give effect to an EU law obligation.

Clause 3 converts “direct EU legislation” into UK law. “Direct EU legislation” includes EU regulations. These regulations would cease to apply in the UK once the UK leaves the EU and the repeal of the ECA takes effect. In order to avoid black holes in the statute book, and to provide legal continuity and stability, this provision means that all of these laws that exist at the point of departure will be converted into domestic law.

Clause 4 of the Bill converts all other directly enforceable EU law that is currently directly applicable through the ECA. This means that directly enforceable treaty rights, such as free movement, are incorporated in domestic law through this provision.

Delegated powers and delegated legislation

Clauses 7, 8 and 9 are delegated powers to enable the Government to make delegated legislation. These powers enable to the Government to amend, if certain conditions are met, all retained EU law. Each of these powers is a Henry VIII power, as it enables delegated legislation to be used to amend primary legislation.

Clause 7 is the correcting power, which is designed to enable the Government to change retained EU law to ensure that it operates effectively outside the EU. Many of these changes are likely to be “technical” in character. The drafting of the power enables substantive policy changes to retained law, for example, by replacing redundant law with new rules and standards or by creating new public authorities to take on functions previously held by EU institutions.

Clause 9 enables the Government to implement the withdrawal agreement through secondary legislation. Enacting this provision would grant the Government the legal authority to implement the withdrawal deal in domestic law, subject to existing arrangements for parliamentary oversight of delegated legislation. This could include any arrangements agreed on the rights of EU nationals. As such, the power will have major effect on the retained EU law in the sense that provisions preserved and converted by clauses 2, 3, and 4 may well have to be amended significantly to give effect to the withdrawal agreement.

Instructions to the courts on interpreting retained EU law

Clause 1 of the Bill repeals the ECA which contains the basis of the supremacy of the EU law as it currently operates within the UK. However, clause 5 (2) retains the principle of the supremacy of EU law as it applies to the interpretation of retained EU law. This means that Acts of Parliament passed before Brexit can be disapplied if they are found not to be compatible with retained EU law.

Supremacy forms part of the general principles of EU law developed by the Court of Justice of the European Union. Clause 6 (3) provides that all relevant case law of the CJEU decided before Brexit day, including the general principles of EU law, should be used by the courts to determine the “validity, meaning and effect” of retained EU law. Clause 6 (1) clarifies that UK courts are not bound to follow judgments of the CJEU given after the UK leaves the EU.

Changes to the devolution statutes

At present the devolved legislatures cannot legislate contrary to EU law. Clause 11 changes this restriction. Post-Brexit the devolved legislatures will not be able to legislate contrary to retained EU law.

In practical terms, clause 11 may not amount to a major change to the scope of devolved competence. However, in constitutional terms the basis of the restrictions will have changed. While currently the restriction is based on each devolved legislature being in a Member State of the EU, this Bill highlights that post-Brexit, the restriction would instead only be based on an Act of Parliament enacted by the UK Parliament.

What next?

Second reading is not expected until September. The committee stage of the Bill will be on the floor of the House of Commons. The amount of time spent in committee will be set in the programme motion which will be voted upon immediately after second reading. The extended session, which will last until 2019, could allow more time for debate, although the Government will be eager to get the powers on the statute book so that it can begin the process of enacting the expected 800 to 1000 statutory instruments needed before exit day. The Government will also want to free up time for the Brexit bills on immigration, customs and other areas of competence.

Committee scrutiny

The Exiting the European Union Committee, the Procedure Committee, and the Joint Committee on Human Rights are all likely to want to scrutinise elements of the Bill. In the Lords, the Constitution Committee reported on the planned use of powers in March and the Government has made a number of references to that report in its materials on this Bill. The Committee’s view on the terms of the Bill will be keenly awaited. The Delegated Powers and Regulatory Reform Committee’s verdict on the delegated powers in the Bill, and on their justification in the Government’s memorandum, will also be much anticipated. Before the General Election, that committee suggested, in written evidence to the Commons Procedure Committee, that it was considering whether it would commence scrutiny of the Bill before it was introduced into the Lords.

Compromise and concessions

When the Government has introduced bills with broad delegated powers in the past, it has variously agreed to add new legal limits to the powers, to specify the purpose of the powers and to strengthen the parliamentary procedures used. MPs and peers will be keen to test the Government’s parliamentary handling strategy for the Bill and the extent to which it will be willing to agree concessions.

Legislative consent motions

One of the major landmarks of the passage of the Bill will be the legislative consent motions that would normally need to be passed in the devolved legislatures. When these motions will be introduced and voted upon is not yet known. The Scottish and Welsh Governments have already indicated that unless the Bill is amended they will not recommend consent to be granted. The Welsh Government has also raised the prospect of using existing legislative powers to “defend” its devolution settlement.

For more Commons Library research and analysis on Brexit visit parliament.uk/Brexit.

Jack Simson Caird is Senior Library Clerk at the House of Commons Library.

(Suggested citation: J. Simson Caird, ‘The European Union (Withdrawal) Bill: Constitutional Change and Legal Continuity’, U.K. Const. L. Blog (18th Jul 2017) (available at https://ukconstitutionallaw.org/))