The bill to undo and replace European Union law in Britain was revealed on July 13, and was immediately the focus of constitutional controversy.

Informally titled the ‘Repeal Bill’, it will copy existing EU legislation into UK law to avoid a “black hole” when Brexit is concluded.

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However, after scrutinising the wording of the bill itself, leaders from Scotland and Wales criticised the government in a joint statement for allegedly failing to return power from the EU to the devolved nations.

Ferret Fact Service has rated this claim as Half True.

Evidence

The bill in question is officially called the European Union (Withdrawal) Bill and was introduced into Parliament on 13 July.

It will repeal the 1972 European Communities Act, which brought the UK into the European Union. This law accepted that European laws took precedence over those decided at Westminster.

The 1972 Act gave EU law supremacy in the UK, and required disputes over interpretation to be settled by the Court of Justice of the EU (CJEU). After Brexit, UK courts and tribunals will no longer be bound by CJEU decisions, nor able to refer cases to it.

It is estimated that over 12,000 EU regulations – binding legislative acts that apply in all EU member states – will need to be copied into UK law. As well as converting EU law, the Repeal Bill will also preserve UK laws that were made to implement over 6,000 EU directives.

Government officials have confirmed that the bill will need to be signed off by devolved nations under the Sewel Convention (laws that affect devolution arrangements must get legislative consent). However, should that not happen, it is still possible for the UK government to push it through.

The controversy lies in the interpretation of the details contained within the bill presented to Parliament.

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The White Paper produced ahead of the bill being presented said the process of withdrawing from the EU would likely mean “a significant increase in the decision making power of each devolved administration”.

However, it also stressed the importance of “common UK frameworks”, a strong indication that powers may be coming back to Westminster.

Many powers currently in the hands of Brussels are in areas that are devolved to Scotland, including “justice and home affairs, agriculture, fisheries and the environment”.

A 2016 report to MSPs by University of Dundee professor Alan Page suggested that the vast majority of the powers coming back from the EU would go to Westminster as they related to reserved matters.

However, he argued that “largely notional devolved competences, however, because of the impact of EU membership, would for the first time become real competences”, unless there was a practical change to the Scotland Act 1998.

How will EU laws be transferred?

Rather than make all the changes at once, the bill gives parliament two years of temporary powers to amend the transferred laws with secondary legislation or statutory instruments. The scale of changes to be made is huge – the White Paper’s estimate of 800 to 1000 statutory instruments needed has been described as “underestimated”.

This power to amend ‘deficiencies’ might be used to alter references to the UK as a member state, or arrangements with the EU that no longer exist. It can’t be used to impose or increase taxation, amend the Northern Ireland Act 1998, or amend, repeal or revoke the Human Rights Act 1998.

The power allows the government to amend or repeal the bill once it becomes law without full parliamentary scrutiny, via the so-called ‘Henry VIII clauses’. The king’s 1539 ‘Statute of Proclamations’ meant that he could legislate through royal proclamation rather than parliament.

The government will also be able to use this power to implement any withdrawal agreement reached with the EU.

This provision has proved controversial in the context of Brexit negotiations. Law lecturer Joelle Grogan argues on the LSE blog that the powers allow ministers too much freedom to decide which deficiencies should be corrected.

Another divisive aspect of the bill is the fact that it will take the UK out of the EU Charter of Fundamental Rights, the EU’s human rights treaty.

Some organisations – such as the Human Rights Centre at the University of Essex – think that this could weaken safeguards in areas like equal rights, data protection and workers’ rights.

Others question the need for international human rights laws, and see the UK as being capable of preserving rights without an EU charter.

The bill itself does not hand new powers directly to the Scottish Parliament, but instead follows the tone of the White Paper, without guaranteeing that powers falling under the scope of devolution will automatically end up in the hands of Holyrood.

Instead, devolved authorities are given the power to correct “deficiencies” that arise from the repeal of EU law.

But is it a “power grab”? Scottish Secretary David Mundell denied Sturgeon’s claim, and instead argued the bill will result in a “power bonanza”.

The UK Government insists that the Repeal Bill is only a temporary fix to meet the tight timescale of Brexit negotiations, slated to end in March 2019.

The Department for Exiting the EU describes it as a “transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with devolved authorities”.

However, there has been significant concern over the use of ‘Henry VIII clauses’, which hand ministers sweeping powers to use secondary legislation without the usual Parliamentary oversight.

What is not certain at this stage is exactly which currently devolved areas would be subject to UK legislation to maintain “UK frameworks” covering the provision of goods and services across the UK. It is unclear how those areas which are partly devolved (“shared competencies”) will be affected.

A 2017 House of Lords report called the EU “part of the glue holding the United Kingdom together since 1997”.

A number of experts have noted that the bill is rather “opaque” around the process of handing post-EU powers to Scotland, and what falls within those powers retained to deal with “UK frameworks”.

Writing in the Constitutional Law blog, Kenneth Campbell QC says there is “no clear mechanism for determining whether a common framework is required” in the bill, which for the devolved administrations could be “politically controversial and technically challenging”.

Sturgeon’s argument is that EU powers in devolved areas going to Westminster instead of Holyrood amounts to undermining the “founding principles of devolution”  – but this depends on how one interprets the law.

She is correct to argue that the repeal of EU laws in devolved areas will not directly mean increased powers for Scotland, which could be seen as a violation of the principles underpinning the Scotland Act 1998, and there has been criticism over the expected use of ‘Henry VIII clauses’ to change legislation.

However, it remains to be seen whether negotiations between devolved governments and Westminster will see many of the powers eventually coming under Scottish control.

Ferret Fact Service verdict: Half True

The First Minister’s claim that the Repeal Bill is a “naked power grab” is partly correct. While she is right that powers that were nominally devolved but under EU legislation will be not be directly brought under Scottish control, the bill itself was produced as a temporary measure to avoid a legislative “black hole” after EU laws cease to apply to the UK. While it is clear some laws in devolved area will likely be retained by Westminster, it does not appear that any actual decisions currently made in Scotland will be removed and it seems probable that devolved areas reverting to UK control will be negotiated in the future.

This claim is half true.

Ferret Fact Service (FFS) is a non-partisan fact checker, working to the International Fact-Checking Network fact-checkers’ code of principles. All the sources used in our checks are publicly available and the FFS fact-checking methodology can be viewed here. Any questions or want to get involved? Email us at factcheck@theferret.scot or join our community forum.

The Scottish Government did not respond to a Ferret Fact Service request for evidence.

Photo thanks to Colin,CC BY-SA 4.0

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Nicola Sturgeon
First Minister


The Repeal Bill “is a naked power-grab, an attack on the founding principles of devolution”