The EU (Withdrawal) Bill (HERE) is a complex bit of work running to 74 pages including the schedules, about twice as long as the original European Communities Act 1972 that took us in (HERE). This is apart from all the 800-1000 Statutory Instruments and other new bills for immigration, agriculture, fisheries, trade and environment that will be needed to ensure a smooth transition.
We were assured by Brexiteers before the vote, that transferring EU law into UK law so that it could be changed by parliament in the future (although we still don't really know what the changes will be), would be a surgical operation, quite short and simple. But now, rather than a scalpel it looks like Brexit is taking a large chainsaw to the fundamental basis of English law in the hope that on March 30th 2019 the law of the land will look exactly the same as it did the day before.
Well, I own a chainsaw and I can tell you nothing looks like it has been done with a scalpel after I've finished with it - and while I am no expert, I don't hear of many surgeons taking a Bosch AKE 40S into the operating theatre, even in the NHS!
So, I wonder what will happen when errors in drafting or unforeseen problems arise. It's not as if these are not anticipated. Clause 7(1) of the withdrawal bill is specifically for dealing with "deficiencies arising from withdrawal" and says:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.
Bear in mind that MPs do not always seem the brightest of people. The dogged pursuit of the UK remaining in a customs union to help the Irish border problem (it won't) is an example but another is the only bit of Brexit law actually passed so far. This is the EU (Notification of Withdrawal) Act 2017 (HERE) all of 8 pages long but now the subject of a High Court challenge that it lacks just two words - "hereby affirmed" - (HERE) which may mean the whole Article 50 process is invalid.
There may well be rather a lot of these "deficiencies", indeed if David Davis is in charge of it we will be lucky if any of it is not deficient in some way. And while the remedy may well be to use so-called Henry VIII powers (otherwise known as Statutory Instruments) the problems will come in the interpretation. After all the 2017 Notification Act was not seen as deficient (and may prove not to be) but this hasn't prevented lawyers arguing all the way to the High Court - and probably the Supreme Court, that it is.
It is not difficult to imagine a fair bit of chaos arising from the legal and constitutional massacre that is Brexit, with courts throughout the land unsure of their position on many detailed but very important matters. None of this will be apparent until we leave and the Withdrawal Act comes to be tested. New laws often take a bit of bedding down but Brexit is so far reaching that it is almost impossible to predict what will happen - but it is unlikely to be smooth sailing.
Constitutional lawyers are in for a bonanza for years and years.
