Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
The European Union (Withdrawal) Bill is a Bill to repeal the European Communities Act 1972 and place all EU law brought in over the past 44 years into domestic UK law. That may sound newsworthy, but actually the most interesting thing about the Bill is how mundane it is. But how can a Bill that proclaims the end of the UK’s membership of the EU be mundane?
Firstly, let’s look at what the Bill is not.
The Bill is not a Parliamentary authorisation for the UK to leave the EU. That authorisation came firstly from Parliament via the Referendum Act and then the electorate via the result. For good measure this was later reinforced by the European Union (Notification of Withdrawal) Act 2017. The decision to leave the European Union has already been taken – voting down this Bill cannot reverse that.
This Bill is also not concerned with the final state of what may or may not be negotiated with the remaining European Union. The negotiations are being conducted by the Government and take their authority from the Government’s general election manifesto – where 85 per cent of the electorate voted for parties (then) committed to leaving the EU, Single Market and Customs Union. Parliament legislates and the Government governs. It is not Parliament’s role to negotiate with the EU27 – that would be a bizarre constitutional innovation and certainly not one within the scope of this Bill.
Lastly, this Bill does not attempt to prejudice future UK policy developments. On issues such as social legislation, agriculture and devolution, the Bill freezes the status quo. MPs may have differing views on these issues, but this Bill is not the place to express them.
So what is the Bill? Well, it is a necessary and professional piece of legislation required as a consequence of decisions already taken. It is necessary for the following reasons.
The UK has for 44 years allowed its regulatory environment be set by the EU. This has left a huge gap in UK law. We may not like all EU laws, but it would be reckless to allow them all to fall on Brexit with no UK substitutes. As there is no time to rewrite 44 years of legislation pre-Brexit, there is no alternative but to transpose existing EU laws into UK law. These will then be placed under the UK Parliament which can, if it wishes, look at and amended them in the future.
The Bill repeals the European Communities Act 1972 – the law that gives EU acts legality in the UK. This is the logical consequence of the decision to leave the European Union. A failure to repeal it would again not lead to the UK staying in the EU. The Act would remain as a redundant piece of legislation, but one that could potentially create legal uncertainties. Repealing it makes sense.
Lastly, we will hear a lot about Henry VIII powers. These are necessary in order to amend EU laws that would not work in the UK without changes. There is no time to amend each reference in primary legislation, so there is a need to give Ministers the power to correct errors. This is not controversial. The Hansard Society, for instance, has calculated that in the 2015-16 parliamentary session, of the “23 government Bills, 16 contained a total of 96 Henry VIII powers to amend or repeal primary legislation”.
But the commentariat will need to comment on something and their preferred story will be “Tory splits”. Unfortunately for them, there is little for even the most ardent Remainer (or Brexiter) to split on. Here are some potential dead ends:
- Vote against the Bill to stop Brexit? This would not stop Brexit. It would, however, stop the transposition of EU law and lead to a Brexit as hard as diamonds. No MP in their right mind would vote down the Bill.
- Vote against the Henry VIII powers? This would either lead to Ministers being unable to amend legislation in time for Brexit, and inevitable legal chaos, or potentially leave anything up to 20,000 EU laws, brought in by the EU’s own Henry VIII power (s.2 of the European Communities Act), being debated in Parliament for the first time. I doubt MPs would enjoy the late nights or thank those who had brought it on them!
- Vote for further votes on aspects of the deal? The deal with the EU will be a package. Voting down some or all of it will not create a new deal, but would probably lead to no deal at all. Would a pro-Remain MP wish to risk that? Likewise, committing the Minister to attain some prescribed outcome misunderstands how a negotiation works – it would be a recipe for no deal or, as the EU27 will see the vote, a very bad deal.
- Vote for a further vote on the whole withdrawal deal? This would be largely symbolic; a vote against the withdrawal deal would ultimately lead to no deal, not to the UK remaining in the EU.
- Vote to tie the hands of the Government in negotiations? Again, this would risk preventing the Government coming to any deal at all. It would not make sense.
- Virtue signalling amendments? MPs might seek to vote to restate things such as that no EU social rights will be removed, or add further (unnecessary) safeguards to the Bill. This is ultimately pointless, as the Government has promised the same, UK rights already go far further than EU laws, and this field already has numerous safeguards in the Bill. If these ever come to a vote they would be ersatz splits.
- Something else? There may be manufactured rows on devolution (the SNP believe the EU exercising agricultural policy is preferable to the UK doing so etc), but ultimately this Bill freezes EU policy areas where they are now. This is not the place to discuss a new agricultural framework, who pays for it, and how much input the devolved administrations have. Anything placed in this Bill will have to be revisited.
The truth is, this Bill is uncontroversial professional piece of legislation. The UK is leaving the EU and this Bill is necessary to ensure this happens in an orderly manner. There will be no Tory splits as there is little to split on. That may be bad for the commentariat but it is good news for the Tory party, which is united on delivering the best deal for the UK.