Chapter 1: Introduction
Background
1.The European Union (Withdrawal) Bill was brought to the House of Lords on 18 January 2018. The Bill seeks to “repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.”1
2.The UK’s withdrawal from the European Union presents a significant and complex legal challenge, especially given the required timescale. We took the unusual step of looking at these challenges in advance of the presentation of the Bill and we set out some of the constitutional issues and difficulties that would face Parliament when it arrived. Our report, The ‘Great Repeal Bill’ and delegated powers, was published in March 2017, shortly before Article 50 of the Treaty on European Union was triggered and set the deadline for withdrawal.
3.Following the introduction of the Bill to the House of Commons in July 2017, we published an interim report assessing it against our earlier recommendations to gauge the extent to which the Government had taken on board our concerns and advice. We were disappointed that many of the problems we had warned of had not been addressed. We concluded that the Bill was “highly complex and convoluted in its drafting and structure” and that it left “multiple and fundamental constitutional questions” unanswered.2 We began an inquiry on the Bill and issued a call for evidence focusing on the effect of the Bill in three broad areas:
(1)the relationship between Parliament and the Executive;
(2)the rule of law and legal certainty; and
(3)the consequences for the UK’s territorial constitution.
4.As part of this inquiry we received written evidence from a number of organisations and individuals. We heard oral evidence from Lord Neuberger of Abbotsbury, Richard Gordon QC, Professor Gordon Anthony, the Labour and Liberal Democrat spokesmen on the Bill and Government ministers. We also had informal discussions with representatives of committees in the Scottish Parliament and the National Assembly for Wales which were also examining the Bill. We are very grateful for their contributions.
The Bill
5.The Bill is a substantial piece of legislation and is complex in terms of both its own structure and the legal regime that it will institute. The central purposes and effects of the Bill are fourfold:
- The European Communities Act 1972 (ECA) is repealed (clause 1).
- Notwithstanding the repeal of the ECA, EU law is retained (clauses 2–4) and its domestic legal status and implications addressed (clauses 5–6).
- Delegated powers are created for the purposes of amending retained EU law, securing compliance with international obligations and implementing any withdrawal agreement (clauses 7–9).
- The powers and competences of the devolved institutions are provided for (clauses 10–11).
6.We examine these clauses and their effect in turn.
1 European Union (Withdrawal) Bill [HL Bill 79 (2017–19)]
2 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), p 2