The Bill will have three main effects. First, to repeal the European Communities Act 1972 (ECA) that enabled Britain to join (what is now) the EU in 1973. Second, the Bill will incorporate various types of EU law into domestic law. Third, the Bill confers powers on Government Ministers which will enable them to repeal, amend, or replace the EU laws which have been converted into UK law by the Bill.
The sheer volume of EU law which forms part of our own law by virtue of our EU membership means that it would be impossible to draft new legislation to replace them in the time available. The broad approach taken – incorporate all EU law and amend it later – is certainly logical and probably necessary. However, there are some concerns as to how the Bill will work in practice.
A key concern for many will be the reliance on delegated legislation. It is a fundamental constitutional principle in the UK that the law is made by Parliament and the Government adheres to such laws in its running of the country. Often, an Act will allow Ministers to create delegated legislation to cover the details and technicalities. Here, the Government has added a provision to the Bill which confers much more substantial powers on Ministers. The powers enable the Government to “make any provision that could be made by an Act of Parliament.” This would include amending or repealing any of the retained EU law, as well as potentially amending other Acts of Parliament. Such a provision is known as a Henry VIII clause. There are some restrictions in these powers in the Bill but they are nonetheless unusually broad. The final wording of these restrictions in the Bill will be key, in what will otherwise arguably represent a significant shift of power from Parliament to Government.
Questions have also been raised in relation to devolution. Without more, the effect of leaving the EU would arguably allow the devolved administrations to legislate in ways they currently cannot (they are prohibited from breaching EU law – once this prohibition falls away, they would in theory be free to legislate these areas in relation to devolved matters). The Bill reverses the presumption these powers will fall to the devolved administrations; instead they will return to London (albeit this position is intended to be temporary). Finally, the Bill does not incorporate the EU Charter of Fundamental Rights into domestic law, an omission which has already received a significant amount of criticism.
It was hoped that the Bill would bring certainty as Britain leaves the EU but in many ways it highlights the uncertainty faced. It will introduce some of the most wide-ranging legislative changes into UK law that have been seen in the post-War era and few industries (if any) will be unaffected. Parliament has an unenviable task of finding a practical solution to an incredibly complex problem – how to untangle over four decades of EU law from our own. Whether the concerns raised above are borne out will inevitably depend on the Bill’s passage through Parliament and the political leverage brought to bear.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of July 17, 2017.