The European Union (Withdrawal) Bill: Where are we now?

The European Union (Withdrawal) Bill, more commonly known as the Repeal Bill, has passed its first major test in the parliamentary process at its Second Reading.

The bill will be one of the most constitutionally transformative pieces of legislation to emerge since Brexit and aims to establish legal consistency when the UK has left the EU.

Second Reading

The Repeal Bill faced its first major parliamentary test earlier this month on the 12 September when it was narrowly voted through in the House of Commons. This concluded the two day second reading stage, which is the first opportunity for MPs to debate the main principles of the bill.

Committee of the Whole House

The next phase sees MPs consider the bill in a Committee of the Whole House, where MPs can propose amendments and debate the finer details of the bill. Whilst the date for this stage has yet to be confirmed, through observing some of main issues raised during the second reading debate and the list of amendments that have already been submitted we have an idea of what direction the bill is potentially going in, and where MPs’ concerns lie.

Amending the bill

A notable proportion of the debate so far has drawn particular attention towards some of Unlock Democracy’s main concerns about the Repeal Bill. We think the bill would write Parliament out of the legislative process if it went through unamended through its proposal to hand ministers unaccountable powers and restriction of parliamentary scrutiny.

The democratic failures with the bill - as it currently stands - have been picked up by the House of Lords Constitution Committee. This committee has even considered it appropriate to break their normal practice on not reporting on bills before they have been introduced to the House of Lords, as they have found the constitutional concerns to be so striking.

Sweeping powers for a handful of ministers

In their interim report on the bill the committee shared Unlock Democracy’s concerns regarding the bill’s usage of a form of legislation called delegated powers. These allow changes to the law to be made by ministers using powers given to it in an Act of Parliament. The wide-reaching and vaguely worded application of the proposed use of powers within the bill, and the reduction of required scrutiny compared to primary legislation, was heavily critiqued by the committee, stating that it “would represent a significant—and unacceptable—transfer of legal competence”.

A particular form of delegated powers that appear within the bill that that currently are not subject to constraints are known as Henry VIII powers, which enables ministers to make changes to Acts of Parliament, including the ability to repeal an act. The committee’s declaration that they “do not believe that the Government has engaged with the need for such safeguards ”(p.15) has further indicated the need for the bill to be amended to prevent constitutional concerns of a fundamental nature.

These arguments have featured heavily during the second reading debates, with MPs across the house seeking to remind the government that the Brexit vote signified taking back control to the British people, not directly to the executive.

The prominence of these concerns are already being expressed in proposed amendments, which cover clauses that seek to reduce the wide discretion for using delegated legislation and strengthen scrutiny procedures. This distinguishable theme across many of the 72-pages of amendments, therefore reflects to a degree the widespread dissatisfaction with the bill as it currently stands, and the need for the government to take a second look.