What is the Repeal Bill all about & why is it so controversial?
The Repeal Bill (or EU Withdrawal Bill) was created to ‘’avoid a black hole in our statute book’’ and insecurity for businesses and citizens, our laws need to be the same the day after Brexit as they were the day before. The Bill proposes to do three broad jobs:
- Repeal the European Communities Act 1972, which sets out our relationship with the EU and allows UK laws to be updated in line with EU rules
- Copy and paste, or convert, the existing body of EU law into UK and amend it so it ‘’functions sensibly’’, so that there isn’t a sudden legal vacuum on the day after Brexit is complete.
- Implement the final deal we come to with the EU.
Now, a lot of EU laws, rules and regulations cannot simply be copy-pasted into UK law. For instance, some EU regulators and bodies will not be relevant in the UK post-Brexit. In order to deal with the amount of EU legislation that will need be transferred the UK law, the Repeal Bill provide ministers with what is referred to as delegated powers (also sometimes referred to as ‘delegated legislation’, Henry VIII’, ‘secondary legislation’). Thus, under the Repeal Bill, ministers have the power to edit laws, without having to create a new Act of Parliament that MPs must debate and vote on. These edits are supposed to be purely technical changes, to make sure that laws still work after Brexit.
The significant amount of power that is handed to ministers under the Bill is part of why there is so much controversy around the bill. The bill substantially lacks any clarity when it comes to what ministers can do with these powers and there are few opportunities for MPs to actually scrutinise what ministers may ‘consider appropriate’ to do with the delegated powers. The Government has also decided to exclude the EU Charter of Fundamental Rights- which sets out a framework for protecting a range of civil, political and social rights. The reasoning behind excluding the Charter according to the Government is that it is unnecessary. The Government claims that the rights it protects can be protected elsewhere. Interestingly, no information has been provided as to where all the rights enshrined in the Charter will be preserved.
The bill has also proved controversial in relation to devolution. The laws of the Scottish Parliament and the National Assembly for Wales are required to be compatible with EU law. Post- Brexit, this requirement would initially be removed, making it possible for the Scottish Parliament and the Welsh Assembly to pass laws in devolved areas, such as agriculture, the environment and fishing that has been governed by EU law. However, Clause 11 of the bill replaces the need for compatibility with a new restriction: devolved law must be compatible with what is referred to as ‘retained EU law’. In devolved policy areas (agriculture and the environment for instance), the UK government could remove former EU rules for England, whereas the Welsh Assembly would not be able to do so for Wales.
Given the issues of the broad powers given to the executive and the threat it poses to devolution settlements, the Bill has sparked discontent across the political spectrum and civil society. The number of amendments that have been made (over 400 to date), many with cross-party support, should come as no surprise. Amendments to the bill include areas that have been of particular concern to the alliance, such as more limits on delegated powers, greater parliamentary scrutiny and ensuring that individual rights and protections are still in place after Brexit. The bill was initially meant to reach Committee Stage after the party conferences, but given the high number of amendments, it has been delayed to the 14th of November. The delay may allow the government some time to reflect on how best to proceed in terms of parliamentary process and amend key bits of the legislation.