On 24 June 2016, in a nationwide referendum, the UK voted to leave the European Union by a narrow margin of 51.9% to 48.1%. Britain has been a part of the European project since 1972 and over that time has become fundamentally connected to the EU in many ways – politically, socially and legally. Disentangling all that raises formidable challenges.
At BillTrack50 we know that many of you have an interest in events across the Atlantic so over the coming months, as the UK moves ever closer to Brexit, we will bring you updates from our resident UK correspondent.
To begin, here is an overview of the legislative process so far and a look ahead to the challenges to come.
The Repeal Bill
The European Union (Withdrawal) Bill (known as the repeal bill) was introduced to Parliament in July 2017. The bill has three functions:
- Repeal the European Communities Act 1972 (the legislation which made the UK part of the EU);
- Adopt all relevant EU legislation into UK law;
- Establish a mechanism for correcting the adopted legislation so that it makes sense in the UK (e.g. it doesn’t make reference to EU institutions which no longer have jurisdiction).
You can see the bill here: https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html
The bill will work its way through Parliament in parallel to Brexit negotiations until it receives Royal Assent and becomes an act. Its provisions then trigger at the point the UK leaves the EU – 11pm on 29 March 2019.
The bill is primary legislation (subject to an extensive approval process by both the House of Commons and the House of Lords) but amendments to the adopted legislation will be secondary legislation achieved through the use of statutory instruments. These can be subject to either positive or negative resolution – positive resolution requires debates and approval in both Houses, negative resolution doesn’t, the legislation is open for challenge in both Houses for a set period of time after which it becomes law (unless it is subject to sufficient challenge). The government estimates it will need around 800 to 1,000 instruments to amend the 12,000 separate EU regulations that will be adopted.
The instruments will be drafted by the government and enacted in the period immediately after exit, hopefully during the transition phase which is currently planned to run up to 31 December 2020. In addition, the government plans to introduce a series of bills in the next session of Parliament to address some of the big questions such as those related to future arrangements for agricultural subsidies, fishing rights and so on.
Here’s a good explanation: https://www.gov.uk/guidance/guidance-for-businesses-on-the-repeal-bill
Issues So Far
There are a number of issues with the Repeal Bill. Some relate to what are called the ‘Henry VIII clauses’ which allow the government to amend legislation without resorting to Parliament if it is deemed essential to the functioning of the country after exit. Politicians of all parties are understandably nervous that this would allow the government to significantly change the nature of the legislation, without proper parliamentary scrutiny, as it conducts the tidying up exercise – something the bill expressly says shouldn’t happen.
Also, the devolved administrations (the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly) are unhappy about the way the Bill addresses their powers. It allows them to amend legislation which applies to their countries but not in ways which are inconsistent with the amends made by the UK government. They think this will force them to essentially follow the lead of the UK government and therefore undermine their autonomy.
So the challenge is to amend the tens of thousands of bits of legislation, in a reasonable timeframe, while allowing reasonable parliamentary scrutiny. And keeping the Welsh and Scots happy (the Northern Irish don’t even have a government at the moment, but that’s another story).
Current Status
The bill is making fair progress; it’s faced an enormous number of proposed amendments and extended debate but Parliament is basically doing nothing else at the moment. The government was defeated in the Commons and forced to grant Parliament a final say on whether to accept the final deal negotiated with the EU. But it could have been worse given their lack of majority – the Conservative government currently relies on votes from the Democratic Unionist Party (DUP) of Northern Ireland to pass legislation.
The repeal bill is currently in committee stage in the Lords and facing a rockier passage, as the government doesn’t have a majority in the Lords. They’ve been defeated several times – the Lords insisting that the government negotiate to stay in the customs union with the EU (which allows tariff-free trade between members). They expect further defeats in coming weeks and will then seek to overturn them when the legislation comes back to the Commons – this could be difficult if there’s a rebellion by disgruntled Conservative MPs and possibly trigger a leadership challenge to embattled Prime Minister Teresa May.
Conclusion
It has been described as the biggest legislative challenge to face the UK in modern times but that is probably an understatement – it’s difficult to think of an example of any western democracy embarking on such a sweeping change to its laws in such a short period of time, particularly at the same time as grappling with such thorny issues as the future of the Irish border and the future trading relationship with the EU. Time will tell whether the UK government can rise to the challenge.
If only there was a business with experience of tracking legislation which could help to make sense of it all…! Let us know if you would find it useful for BillTrack50 to add UK and/or EU legislation to the services that we offer.
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