The EU Withdrawal Bill – procedural not political

The EU Withdrawal Bill – procedural not political

The Government has today published its much anticipated EU (Withdrawal) Bill. While the Bill is a key milestone in the process of the UK leaving the European Union, in political terms, it is more significant for what it doesn’t do than what it does. Ultimately, the Bill is little more than a procedural Bill to implement the fact that the UK will no longer be a part of the EU’s legal order once we have left the European Union.

What it does not do is repeal any EU legislation, despite its previous informal moniker as the “Great Repeal Bill”. It simply brings EU regulations, which would otherwise cease to apply, directly onto the UK statute books. It turns off the tap of new regulations coming in from the EU, but it does not pull out the plug to drain any existing regulations away. While it will end the jurisdiction of the Court of Justice of the EU and end the supremacy of EU law in future, it maintains the hierarchy of existing laws, with extant EU legislation retaining its superior status over current UK law.

Nor does it give the Government sweeping powers to “pick and choose” which EU regulations to scrap or keep. The powers it grants are only for the Government to correct “deficiencies” in EU laws as they are currently drafted – for instance by changing references to an EU regulatory body that we will no longer be part of to the relevant UK regulatory body, not for ministers to change laws because they “did not like them” – and are strictly time-limited to two years after the Exit date.

Claims that the Government can use these powers to cut workers’ rights or human rights are entirely unfounded, although this is inevitably not going to stop them from being made repeatedly. The powers concern legal technicalities, not policy changes. Any policy changes directly resulting from the UK’s departure from the EU will be strictly the preserve of the seven or so subsequent Bills on trade, agriculture, fisheries and so on.

Beyond the wilful misinterpretation of the scope of the temporary executive powers granted to the Government, the biggest political fight brewing is over the line in the Bill which states that the EU’s Charter of Fundamental Rights will not be similarly incorporated into UK law.

Objections to leaving the EUCFR are more likely to stem from the fact that it has a grandiose name rather than a thorough consideration of the legal issues involved. The Charter is essentially a consolidation of existing EU law, CJEU case law and the European Convention on Human Rights, all of which will continue to apply in the UK after Brexit under the provisions of the Bill. The Charter merely serves to duplicate these laws in this regard, while the Bill explicitly precludes the temporary powers from being used in a way that would affect the UK’s own Human Rights Act 1998 in any way.

Moreover, there are doubts as to whether it would even be practicable to implement the EUCFR outside the EU due to its highly EU-specific nature, with a report from the Women and Equalities Committee on Ensuring strong equalities legislation after EU exit concluding in February that “it would be difficult to apply the Charter so that it would function in a domestic context alone”. (Professor Richard Ekins makes the more fundamental case against the Charter here.)

Fundamentally, the Bill is procedural, not political. Its purpose is simply to facilitate the orderly transfer of existing EU law onto the UK statute books, allowing it to continue to function as it does now, while stopping the flow of new EU legislation after we have left.

The consequence of the Bill not being passed would be to leave the UK in a state of legal chaos with 12,000 EU regulations potentially vanishing overnight. While this might be an appealing prospect to some eurosceptics, this would represent a genuine “cliff-edge” with legal upheaval and disarray on an unprecedented scale.

Similarly, failing to grant the Government the power to make technical adjustments to existing regulations would leave the UK with a vast body of defunct laws referring to institutions the UK is no longer part of, rendering many of them unworkable in practice.

Stopping this Bill will not stop Brexit. As the EU took the trouble to remind those still fantasising about halting the Brexit process altogether in a ‘fact sheet’ on the state of play in the negotiations yesterday, “once triggered, [Article 50] cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the negotiation.” Moreover, if no agreement is reached, “the EU treaties simply cease to apply to the UK two years after notification”.

The same goes for direct EU law in the UK which only applies by virtue of our membership of the treaties. Those intending to amend or obstruct this essentially non-political Bill for reasons of party or partisan politics should consider very carefully the implications of doing so. Advocates of a so-called “soft Brexit” will find themselves waking up to the hardest landing imaginable on the 29th March 2019 if they do not relent in their efforts to oppose it for opposition’s sake.