Legislating for Brexit Part 1: What has been done so far to prepare our statute book for Brexit?
Leaving the European Union requires significant changes to our laws. Forty years of EU membership of has inevitably affected many of areas of UK law- from protecting the UK’s wildlife and environment to our right to protection of personal data. In this explainer, we take a look at what has been done so far to prepare our statute book for Brexit and what some of the challenges have been, and continue to be, to ensure legal certainty post-Brexit.
First step in legislating for Brexit: The EU Withdrawal Act
The first task to prepare our lawbook for withdrawal is to repeal the law setting up our membership of the EU and dismantle the processes by which we adopted EU laws.
This is where the EU Withdrawal Act 2018 comes in. The Act sets out that on March 29th 2019, the European Communities Act 1972 will be repealed. This stops EU laws from taking effect in the UK and ends the precedence given to EU law over UK laws.
To avoid a legal vacuum after we leave the EU, the Act transfers all current EU laws into UK law. This creates a new status of “retained EU law” . The UK Parliament is then able to ‘amend, repeal and improve’ EU laws as necessary.
The idea is that the Withdrawal Act will ‘copy and paste’ current regulations. However some of these rules will no longer make sense when we have left the EU, so the Act gives ministers significant powers to ‘edit’ EU laws, rules and regulations after exit day. These edits are not meant to change overall policy but only meant to make technical changes- such as removing references to things like EU institutions.
What concerns were raised about the Act?
The intention with the EU Withdrawal Act was to provide legal certainty to business, civil society and individuals post-Brexit.
However, the Act has left many questions left unanswered and given rise to many concerns, especially around fundamental rights and parliamentary scrutiny.
Henry VIII and other delegated powers
Let’s take the power given to ministers to ‘edit’ retained EU law. These powers are so broadly defined they can, in effect, be used to remove rights and change regulatory standards with very little scrutiny from elected MPs.
The Government are not only planning to grant ministers these powers via the EU Withdrawal Act, but also in other pieces of Brexit legislation like the Trade Bill and the Taxation (Cross-Border) Bill.
It is estimated that there will need to be over 800 technical changes to make retained EU work properly. It would not be practical for Parliament to spend its limited time scrutinising every single change in law where there is a reference to the EU.
But it is important that Parliament can decide which changes it thinks are important and have a say on those. Although the Government made some concession on this they do not go far enough. There must be robust parliamentary scrutiny and safeguards against the transfer of power to the Executive.
The Charter of Fundamental Rights has not been included in the ‘copy and paste’
The Government decided to exclude the EU Charter of Fundamental Rights from the transposition process. The Charter provides the overarching frameworks for human rights in the EU. For years, the Charter has provided a clear framework for rights that are fundamental to the way we live, and enjoy, our lives- the right to life, human dignity, liberty, property, privacy and freedom of expression. The right to protection of personal data, the rights of the child, the right to effective remedy, rights of the elderly and disability rights are left vulnerable as a result of excluding the Charter from the Withdrawal Act .
A Westminster powergrab?
The Act also has significant implications for the devolved nations and regions. The Act originally proposed that all powers currently exercised at an EU level would flow back to Westminster. This is despite some of these policy areas already being devolved.
That effectively meant that the UK Government could remove former EU rules and regulations for England (and indeed the whole of the UK), but the Welsh Assembly and Scottish Parliament could not do so for Wales & Scotland.
This lack of consideration of the devolved administrations created significant political problems for the UK Government. Both the Welsh Assembly and the Scottish Parliament passed their own, alternative Brexit bills.
After pressure from Scottish and Welsh Governments, parliamentarians and civil society across the UK- the Government was forced to concede and change the wording in the EU Withdrawal Act. While the Welsh government accepted this compromise and are repealing their alternative Brexit bill, the Scottish Government did not. The Scottish Brexit bill- UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill has resulted in a legal dispute about whether in fact Scotland has the legislative competence to pass the act.
Following on from the EU Withdrawal Act, there are still a number of issues that remain unresolved - from a potential weakening of environmental standards to removing the right for citizens to go to court on the basis that EU principles (such as the human rights and equality before the law) are breached. You can read more the EU Withdrawal Act and about the work the Alliance did to improve it here.