In the early hours of September 12, Theresa May’s government appeared to bring Brexit one step closer to completion by gaining parliamentary approval for the “European Union (Withdrawal) Bill”.
Amendments submitted today by politicians who voted for and against the bill suggest that the final draft may contain key changes, and the negotiations over these details are likely to define the UK’s post-Brexit legislative landscape.
- Following a debate in the House of Commons, British members of parliament (MPs) voted to proceed with the current text of the “European Union (Withdrawal) Bill”.
- The Bill repeals the European Communities Act of 1972, which (with a number of amendments in the intervening years) is the legal basis for European legislation being incorporated into UK law.
- The Bill provides for a degree of continuity, through a category of “retained EU law” which provides legal grounding for the EU legislation that will be retained.
- The next step of the legislative process is for the bill to be debated at Committee stage, before being reported to parliament and facing another vote at the Third reading.
Behind the “power grab”
While the Bill effectively adopts European law into UK legislation to avoid the disruption of legislation disappearing overnight, it gives powers to amend the relevant legislation to government ministers. This power is known as the “Henry VIII Clause” – in a reference to the 1539 Statute of Proclamations, which gave Henry VIII the power to rule by proclamations and by-pass parliament.
This was criticised by members of opposition parties, who argued that changes to legislation must be passed by parliament, and politicians from the Scottish and Welsh parliaments, who called it a “power grab”, saying it undermined the rights assigned to them when certain powers were devolved from Westminster to the regional governments.
Labour leader Jeremy Corbyn used the same phrase to criticise the means by which the Conservative government plans to pass the Bill. In assembling the committees who will debate the Bill in the next phase of the legislative process, May’s cabinet selected a majority of conservative members, even though the committees are supposed to reflect the make-up of parliament, and the Conservatives do not have an overall majority.
The crux of debate
The Henry VIII clauses give the government “pretty wide scope” to change laws, says Kenneth Campbell QC, a public law barrister at the English and Scottish bars.
“In principle,” says Campbell, “it would be possible for the Government to introduce a Bill to deal with each area of EU policy competence (there are between 30-40), and make more focused secondary legislation under those.”
However, given the amount of legislation required that appears “unrealistic”, says Campbell. “The UK law underpinning has to be in place at the point when the UK ceases to be a member of the EU, whenever that turns out to be. In other words, some sort of Henry VIII mechanism is the only practical way to do this in the time required.”
What to look out for
The Committee stage of the Bill’s passage is therefore likely to be dominated by battles over the scope of parliamentary scrutiny, “perhaps around timetabling, or having additional parliamentary committees, or having sunset clauses,” Campbell tells WikiTribune.
By early afternoon on 12 September, opposing MPs had submitted a 59-page list of proposed amendments.
The amendments repeatedly request that ministers’ authority to amend the retained EU legislation be curtailed.
The proposals also include a demand that the entire agreement will not be ratified before a new treaty has been agreed between the UK and the EU.
One of the proposals that had the most members’ support was to include the EU’s Charter of Fundamental Rights in the retained legislation.