As we await the countdown to the judgment of the UK Supreme Court to various legal challengest to Brexit, it might be interesting to revisit the comments delivered by Baroness Hale regarding the planned Great Repeal Bill of Theresa May.
Prior to hearing the UK government’s appeal on whether the UK Parliament should be consulted on the invoking of Article 50, Baroness Hale said that the Prime Minister could be forced to repeal and then replace existing European legislation before she initiates Brexit.
In comments which set the scene for reigniting the row over the judiciary’s role in Brexit, Baroness Hale of Richmond, deputy president of the Supreme Court, said the Anglo-Welsh appeal case raised “difficult and delicate issues” about the relationship between Parliament and the UK Government.
Two weeks before Baroness Hale delivered her lecture containing the comments, three High Court judges held that the UK government must seek and acquire UK Parliamentary approval to invoke Article 50 of the Lisbon Treaty, which sets out the two-year process by which Member States may withdraw from the EU.
In the lecture, Baroness Hale queried whether an Act of Parliament alone would be sufficient to enable the UK Government to commence the Brexit process, and said that ministers may have to replace legislation which confirmed the accension of the UK to the-then European Community.
The legislation Baroness Hale was referring to is the European Communities Act 1972, which legislated for the accession of the UK to the European Communities, the collective term for the European Coal and Steel Community, the European Economic Community, and the European Atomic Energy Community. The 1972 Act also provided for the incorporation and implementation of European Union law (then Community law) into the domestic law of the UK.
The Act has been amended several times to give legal effect to the Single European Act, the Maastricht Treaty which established the European Union, and most recently the Treaty of Lisbon. It is the 1972 Act which may or may not be repealed or amended following the decision in the EU Referendum to “Leave the European Union” on Thursday 23rd June 2016. In an interview with BBC News in October 2016, Theresa May promised that the UK Government would introduce a bill to repeal the Act, the so-called ‘Great Repeal Bill’.
Of the issue, Baroness Hale said:
“The argument is that the European Communities Act 1972 grants rights to individuals and others which will be lost if the treaties cease to apply…Such a result, it is said, can only be achieved by an Act of Parliament… Another question is whether it would be enough for a simple Act of Parliament to authorise the Government to give notice, or whether it would have to be a replacement for the 1972 Act.”
Lady Hale added:
“What is meant by the exercise of the executive power of the state? To what extent can it be exercised in a way which may undermine the exercise of the legislative power of the state? We do not have a written constitution to tell us.”
Baroness Hale was merely discussing the unique nature of UK law, given that the constitution is uncodified. That the UK Government have ended up in a legal tangled mess over Brexit must be the worst kept secret in Europe.
Unsurprisingly, Lady Hale’s comments prompted a furious response from Dominic Raab, a former justice minister and member of the Brexit Select Committee:
“I’m all for democratic debate…But you can’t have it both ways. If such a senior judge muses in public about a pending Supreme Court judgment, the judiciary can hardly scream blue murder if politicians, the media or public respond.
“If judges dip their toes in political waters . . . they are asking to get splashed back.”
Ministers are preparing a “bombproof” three-line Brexit Bill in case the government loses its appeal. It has been drawn up so tightly that ministers hope it cannot be amended by MPs attempting to derail Brexit.
But first, we must hear from the UK Supreme Court. And so we will look to the New Year, and wonder what it will have in store.