The legal process of the UK leaving the European Union is now properly underway with the publication today (13 July 2017) of the European Union (Withdrawal) Bill.
We will be hearing a good deal about this Bill as it will be contentious as between the government and just about every other political party bar the DUP. We thought we would provide you with an idea of what the Bill seeks to achieve to save you (perish the thought) reading it yourself.
The Bill is a very elegant piece of draftsmanship. In a mere nineteen sections, it effectively transfers 45 years of European law into domestic law. It does this by ensuring EU-derived domestic legislation becomes domestic law on Exit day (the day we leave the EU). In doing so the continuity of EU-derived law will continue after Exit day. This allows certainty as to what the law is after Exis day.
The Bill also expressly states that the supremacy of EU law does not continue after Exit day and that the European Court no longer has jurisdiction in the UK after Exit day.
The Bill allows ministers (both UK and Scottish) to make regulations to assist the transition. This is the so-called Henry VIII power that you will hear a great deal about over the next year. Henry VIII powers give ministers the power to change UK law without seeking parliamentary approval. As will be apparent Henry VIII powers are not new and are still used on a regular basis by Ministers. The contentious issue for the opposition parties will be that these powers will have to be exercised on an unprecedented scale to achieve a smooth transition out of the EU.
One other matter you will hear about is the necessity for Holyrood to consent to some parts of the Bill.
A legislative consent motion or a Sewell motion is not legally necessary to allow passage of this Bill. That is because The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. Any suggestion that the Scottish Parliament can thwart the passage of the Bill is misplaced.