Brexit dominates the proposed programme of government set out in the June 2017 Queen’s Speech, with eight proposed Brexit-related Bills due to be considered in the period of less than two years before the UK is scheduled to leave the European Union in March 2019. These Bills are as follows –
Repeal Bill / European Union (Withdrawal) Bill
The idea of the ‘Great’ Repeal Bill, now published on 13 July 2017 as the European Union (Withdrawal) Bill, is to repeal the European Communities Act 1972, which established the primacy of European law and to end the jurisdiction of the Court of Justice of the European Union. In order to avoid a legal “black hole” it would then import into UK law the entire body of existing EU law, or 45 years’ worth of Directives, Regulations and caselaw, known as the ‘acquis communautaire’. The intention is that these laws would then be amended or repealed at a later stage under the authority of the UK Parliament, or the devolved legislatures.
Some of this can be done without significant amendment. Other measures will require amendment before being re-enacted. As the scale of the changes needed would exceed the time available for primary legislation in the UK Parliament, it is proposed to take wide powers for this process to be done by secondary legislation, but this is itself politically contentious, and will be one of the fault lines in Parliamentary votes on the Bill.
The Explanatory Notes to this Bill describe its purpose and four intended main functions in this way -
“10 The principal purpose of the Bill is to provide a functioning statute book on the day the UK leaves the EU. As a general rule, the same rules and laws will apply on the day after exit as on the day before. It will then be for Parliament and, where appropriate, the devolved legislatures to make any future changes.
11 The Bill performs four main functions. It:
○ repeals the ECA;
○ converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU;
○ creates powers to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement; and
○ maintains the current scope of devolved decision making powers in areas currently governed by EU law.”
Among many other aspects of real importance, which will emerge as the draft Bill is discussed over the summer, the Bill as introduced would repeal the European Communities Act 1972 ‘ECA’ on exit day. EU-derived domestic legislation would be ‘saved’ or preserved. Direct EU legislation, such as EU Regulations, “so far as operative immediately before exit day” would form part of domestic law on and after exit day. There would be further savings for important rights under the ECA, but the Charter of Fundamental Rights would not be brought across to domestic law. Efforts are made to replicate or replace with similar effect the current distribution of powers and competences made under the different devolution settlements, although the administrations in Scotland and Wales have raised important questions about the way this is done.
Clause 7 of the Bill deals with “deficiencies arising from withdrawal” (i.e. the bits that don’t work without amendment when transferred from EU to domestic law) and will be one of the most closely scrutinised areas of this legislation -
“7(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law arising from the withdrawal of the United Kingdom from the EU.”
Regulations under this clause may make any provision that could be made by an Act of Parliament. Regulations can provide for functions of EU entities, “including making an instrument of a legislative character or providing funding” to be exercisable instead by an existing or new public authority in the UK, or replaced, abolished or otherwise modified. Opposition parties have said that they will oppose such extensive regulation making powers.
The Bill itself would therefore result in a large number of Statutory Instruments of unusual importance. Schedule 7 of the Bill contains significant indications of which Statutory Instruments would qualify for enhanced Parliamentary scrutiny under the draft affirmative procedure, and which would not.
Customs Bill
This Bill will be needed to establish the framework for the UK’s customs arrangements with its trading partners, and to set its own VAT and excise rates. Whether the UK stays in the Customs Union of the EU negotiates membership of some part of it or leaves it in order to be able to strike its own trade deals more widely with other countries around the world is now a matter of debate both between and within the main political parties. It has wide practical implications for the ease or difficulty faced by many different industries, such as automotive or aerospace, which are based on complex supply chains, and for the political aims for ‘frictionless’ borders and trading, including across the border between Ireland and Northern Ireland.
Trade Bill
Before the June 2017 election, the UK government’s aim was expressed to be to leave the EU Single Market, and the Customs Union, and to negotiate trade agreements and enhance trade with as many different trading partners as possible around the world. The Department for International Trade was set up with that aim in mind. UK government policy has not changed immediately after the June 2017 election, but many different factors may now affect it, such as the continuing debates about the Customs Union, and the willingness of other countries to discuss or conclude trade agreements, now or in the future. Meanwhile trade policy and its impacts are becoming important to many other areas, such as the environment. Setting national standards is not just a matter of national choice, but one where, for example, deregulation can result in complaints of discriminatory standards under international trade rules.
Immigration Bill
This will be needed to set the framework to replace the European Union rules on freedom of movement and rights of residence with a revised UK national immigration and nationality policy.
Fisheries Bill
This will be needed to replace the UK’s participation in the Common Fisheries Policy with control of access and fishing within its own waters and potential Exclusive Economic Zone. Responsibility for fisheries, for example in Scotland, has been devolved.
Agriculture Bill
UK participation in the Common Agricultural Policy will end with its membership of the European Union, and this legislation will need to set out the framework for a national system of agricultural legislation and support to replace it.
Nuclear Safeguards Bill
The UK government decided that leaving the European Union under the Article 50 TFEU mechanism also necessitated leaving the Euratom Treaty. Remaining within the Euratom Treaty structures would have entailed remaining subject to some aspects of the jurisdiction of the Court of Justice of the European Union. Leaving the Euratom Treaty will necessitate replacing the system of nuclear safeguards, enhancing the powers and capacity of the Office for Nuclear Regulation and replacing some key agreements facilitating the international transfer of nuclear materials.
The Nuclear Industry Association paper on Exiting Euratom sets out six key steps sought by the nuclear industry in making this transition. The EU issued a position paper on nuclear materials and safeguard equipment (Euratom) on 22 June 2017, and the UK Government issued its own position paper on 13 July 2017 ahead of negotiations on Euratom in the week beginning 17 July 2017.
International Sanctions Bill
This Bill would enable the UK to take national actions with respect to international sanctions where at present it does so as part of the European Union.
By any standards this is an exceptionally heavy legislative programme, with Brexit described by many as the biggest change to the UK’s legal structures since the Second World War.