Newington's Naomi Harris analyses the long-awaited Repeal Bill.

The laying of the Repeal Bill – or, to call it by its proper title, the European Union (Withdrawal) Bill, before the House of Commons on 13 July caused another wave of headlines across the UK and beyond. However, if there is one thing that the last few days has taught me it’s that there is still relatively little understanding of what the 66-page Bill will do.

There’s quite a lot of chatter about the ‘so-called Henry VIII powers’ but it’s quite difficult to grasp the scale of what is being put forward by the Government by only looking at a portion of the Bill.

The Bill repeals the 1972 European Communities Act which means that on Brexit Day (the date, no later than 31 March 2019, that we formally leave the EU), EU law will no longer take precedence over laws passed in the UK Parliament and the European Court of Justice will no longer have jurisdiction.

To qualify what that means, the House of Commons Library estimates that between 1993 and 2004 i.e. the period between the EU’s creation (replacing the European Economic Community) and its enlargement, 13.2% of primary and secondary legislation enacted in the UK was EU related. That’s quite a bit of law covering everything from rules for the financial services sector to limitations on air pollution from the ships around our coast.

In addition to the treaties there are about 12,000 EU regulations which have been incorporated directly into the UK’s domestic law by the European Communities Act. There are also about 7,900 statutory instruments in force in the UK which transpose EU law into domestic law.

The Repeal Bill proposes that as a first step we essentially transfer all the various EU law across on to the UK’s statute book in one wholesale move – with the notable exception of the EU Charter of Fundamental Rights.

Whilst this is being done the Government will have delegated power to start ‘correcting’ EU law because some of it cannot simply be copy and pasted, for example where a regulation gives recourse to the European Court of Justice. Under the Bill, the Government will have this power to amend and adapt EU laws for up to two years after Brexit, and it is this Henry VIII power that is causing so much concern. This concern about the lack of parliamentary scrutiny has been amplified by the proposal within the Bill for delegated powers to be used in giving effect to the outcome of Brexit negotiations, and confusion as to whether the powers will be used through a negative or affirmative procedure. 

A negative procedure will see the Government’s proposal to correct EU law become domestic law without debate unless there is an objection from either House. An affirmative procedure, by contrast, requires approval from both the Lords and Commons. A subtle but important difference, due to the amount of time Parliament will have to review legislation. The Lords Select Committee on the Constitution says a special procedure should be put in place for scrutinising more controversial statutory instruments in order to reassure parliament.

The Government estimates that between 800 and 1,000 statutory instruments will be required, and says ‘it is not a power to change laws merely because the government did not like them before Brexit’. Opposition parties publically argue that the Bill places far too much power in the hands of ministers outside of proper parliamentary oversight.

Meanwhile, the nationalists in Westminster and the devolved administrations in Scotland and Wales have also said that the Government has embarked on a ‘naked power grab’, as the Repeal Bill covers territory that is considered a devolved competency, such as agriculture. The argument put forward by ministers that it will be necessary to take EU law under a common UK umbrella to provide certainty to businesses before consulting on whether there are areas which can be devolved is not cutting any mustard with the nationalists.

What does this all mean for the timing of a Bill that the Government wants passed before Brexit Day in order to make sure there is no ‘black hole’ in UK law when we wave ‘good bye’ to Brussels? A massive headache, which, as the House of Commons Library points out, is ‘further complicated’ by the overlap with the withdrawal negotiations which ‘could very much narrow the parliamentary window available to the Government to pass many of these instruments.’

As we look ahead to Parliament’s return after summer recess, a rebellion by some of Theresa May’s backbenchers, who have remained publically quiet so far on the Repeal Bill, is a possibility.

This leads me to the another Bill that could have far reaching consequences – the European Union (Referendum on the Withdrawal Agreement) Bill which was laid before the House of Lords the day before the Repeal Bill.

Seen as a largely futile attempt by Baroness Ludford, the leader of the Lib Dems in the Lords, to keep the debate on Brexit going, could it be that Theresa May would consider giving the Government’s backing to the ‘Second Referendum Bill’ if a rebellion ensued and on the proviso that she gets the numbers to push the Repeal Bill through?

I would say that the likelihood of this is exceptionally slim, but if the last few months have taught us anything it is that you can never say never in politics.

To understand how these bills may impact your business contact Naomi Harris and her team, who can provide real insights into these bills – on the politics as well as the process – at n[email protected] or on 020 7234 3669.