Explainer: Everything you need to know about the EU Withdrawal Bill

Caitlin Logan

Ahead of second reading of Brexit bill, CommonSpace explains the key points

THE Conservative government’s EU Withdrawal Bill will have its second reading the House of Commons on Thursday (7 September) and Monday (11 September), where MPs will debate the bill before voting on whether to pass it to the next stage.

The bill, which sets out the regulations for the transfer of powers back from the EU, has been widely criticised by opposition parties and pro- EU Tories since it was made available at the first reading on 13 July.

CommonSpace takes you through the key points from the bill and what is likely to happen next.

What does the bill propose?

  1. Repealing the European Communities Act 1972

The crux of the bill is the repeal of the law which currently provides for all EU laws passing into UK law. By repealing the bill, the powers which the EU currently has over the UK will be returned into UK law, as of ‘exit day’, which is as yet unspecified.

This is a complex process, because there are EU laws which are already included in UK legislation, there are those which have not before been converted into UK law which will need to be now, and there are those which relate to powers normally devolved to the Scottish Parliament, Welsh Assembly, and Northern Irish Assembly.

  1. Withdrawing from the European Court

Part of this process, as outlined in the bill, is ensuring that courts or tribunals in the UK are no longer bound by any principles or decisions which are made by the European Court after exit day.

This means that UK courts can no longer refer any matters to the European Court for a ruling. However, laws which were made prior to exit day will remain in effect, and can only be challenged by the Supreme Court.

It’s also important to note that what the bill calls the ‘European Court’ refers to the European Court of Justice, the highest court of the EU in matters relating to EU law.

This is distinct from the European Court of Human Rights, which was established by the European Convention of Human Rights within the Council of Europe. All of these exist outside of the scope of the EU and include countries which are not members of the EU – including the UK.

  1. Delegating powers to ministers

A number of powers are conferred to ministers by the bill which is intended to speed up the process. These are commonly referred to as Henry VIII powers, in reference to the 1539 Statute of Proclamations 1539 which gave Henry VIII the power to legislate by proclamation. 

This has been perhaps the most controversial aspect of the bill as far as the UK Parliament is concerned, because it gives the government substantial powers to change laws or create institutions – where considered necessary in the process of leaving the EU – without the scrutiny of parliament.

The bill allows this power for two years after the exit date, and specifies that this would include “any provision that could be made by an Act of Parliament”- with a number of key exceptions including taxation, creating a criminal offence, or amending or repealing the Human Rights Act.

The government has estimated that transferring EU law into UK law will require between 800 and 1,000 statutory instruments. Parliament has the right to vote to overturn these after the fact, but this is uncommon with statutory instruments and the argument is that this doesn’t allow the required level of scrutiny when passing laws with potentially wide reaching effects.

This power is also given to ministers of the devolved administrations in relation to powers currently devolved to them, where they deem this necessary to allow the former EU to work. However, the bill also includes a number of limitations on devolved parliaments which means this power is considerably less wide reaching than it would be for UK ministers.

  1. Transferring EU powers on devolved issues to Westminster

The issue of how withdrawal from the EU interacts with the devolved administrations has also been highly contentious. The bill specifically provides that any powers on devolved issues which have been under EU control will return to the UK government, and not to the Scottish Parliament or Welsh or Irish Assemblies.

During an undefined period of consultation, the powers of the devolved administrations to change any regulations currently imposed by the EU will be frozen, while the same freeze on powers will not be imposed on the UK parliament.

Unsurprisingly, this has led to major opposition from the Scottish and Welsh governments.

  1. Withdrawing from the Charter of Fundamental Rights

The bill includes a clause which specifies that “the charter of fundamental rights is not part of domestic law on or after exit day.”

Member states of the EU are expected to abide by this charter, which provides for a ban on torture and slavery, the right to life, privacy, freedom of speech and religion, peaceful protest, a fair trial, fair working conditions, and equality before the law.

Both Labour and the Liberal Democrats have said they would not support the bill without stipulation that the UK would be bound to a charter of fundamental rights, so this poses serious problems for the bill’s progress.

What isn’t covered by the bill?

Some of the key questions which remain in doubt around the UK’s future relationship with the EU in terms of trade or migration are not addressed by the EU Withdrawal Bill.

The SNP has tabled an amendment asking for inclusion of “a unilateral guarantee on the rights of EU nationals in the UK”. At present, there is no mention of EU citizens’ right to remain in the UK, although the UK government released a policy paper on the subject in June. A paper leaked this week revealed Home Office plans to end freedom of movement after the exit date. 

Brexit talks with the EU are ongoing, so much of the substance of what leaving the EU might mean is uncertain, which is likely why the bill remains unspecific on many of these issues.

The matter of how the powers transferred back from the EU will be used is a separate question entirely, so the eventual outcome of these changes is as yet unclear.

Will the bill pass?

The SNP, Labour, the Liberal Democrats, The Green Party and Plaid Cymru have all indicated that they will not vote for the bill as it currently stands- with Labour announcing this week that the party’s MPs will be ordered, with a three line whip, to vote against the bill.

While a number of pro-EU Tory MPs have indicated that they will put forward amendments at the committee stage, none are expected to vote against the bill at this stage.

It remains possible that a number of Labour MPs will rebel to support the bill, but the Tories will likely be banking on the support of the DUP to secure a majority vote. As the DUP’s agreement with the Conservatives includes supporting the government on legislation “pertaining to the UK’s exit from the EU”, it is very possible that this will be successful.  

What happens next?

In the event that the bill does not secure a majority vote, the process will return to square one and the Conservative government will have to make changes to the bill before putting it forward to parliament again.

If, however, the bill does pass, it will move on to the committee stage where amendments will be proposed and voted on. Once the amended bill has been put forward to the parliament, there will be a third reading at which the amended bill will be debated and voted on. After this, the bill still has to pass through the House of Lords, before a final bill given royal assent.

As the the bill impacts directly on the Scottish Parliament and Welsh and Northern Irish assemblies, under the Sewel Convention the devolved bodies have the right to pass- or refuse to pass- a legislative consent motion agreeing that the bill can be passed.

The SNP has already said it would not vote to give the consent of the Scottish Parliament to the bill as it stands—although it remains to be seen how significantly the bill will change before this consent is required.

Welsh First Minister Carwyn Jones joined Nicola Sturgeon in condemning the bill as a “blatant power grab”, and said he would not recommend the Assembly to give consent to the bill in its current format.

The matter of Northern Ireland is perhaps most complex given that it will share a border with the EU, although the complexities of this issue are not apparent from the bill. It has now been revealed that the EU wants Northern Ireland to have a different Brexit deal in light of the sensitivities.

With all of this in mind, while the bill may pass its second reading with Conservative and DUP support, there is some way to go before it becomes law, and it is likely that the Conservatives will need to make some important concessions before it does.  

Picture courtesy of UK Parliament.

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