The Repeal Bill Cometh.

The ‘Great Repeal Bill’ promised by the Prime Minister in October 2016 will be published today, Thursday 13th July.

It will repeal the 1972 European Communities Act, and repatriate EU law into British law, thereby ending the general supremacy of EU law.

The Bill, described by the Prime Minister as an “essential step” to EU withdrawal, was the centrepiece of the Queen’s Speech.

When published, its short title will be different as value-laden terms such as ‘great’ are not permitted in legislative titles. It is expected to be titled the European Union (Withdrawal) Bill.

Once it is introduced to the UK Parliament, it will be scrutinised through debates in the Houses of Commons and Lords, and more detailed line-by-line scrutiny in select committees. Amendments can be made to the bill. Both the Commons and the Lords will need to approve the bill, with any amendments, before it can be passed.

Even if the Bill is relatively short, the scrutiny process may take some time if previous examples of EU bills are any guide – remember the legislation to ratify the Maastricht Treaty?
This follows on from the white paper published by the Department for Exiting the European Union on 30 March 2017 which set out the objectives for the proposed Great Repeal Bill:

  • Repeal the European Communities Act (1972) on the day the UK leaves the EU,
  • Replicate some 20,000 pieces of EU law onto the UK statute book,
  • Convert directly-applicable EU law (EU regulations) into UK law,
  • Preserve all the laws that have been made in the UK to implement EU obligations,
  • Ensure the rights in EU treaties that are relied on directly in court by an individual will continue to be available in UK law,
  • Historic European Court of Justice case law will be given the same binding, or precedent, status in UK courts as Supreme Court decisions, and
  • Create powers to make secondary legislation under statutory instrument procedures.

The White Paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster has to be compatible with those passed in Brussels.

It also says that past judgements of the European Court of Justice (ECJ) will be downgraded in status after Brexit. ECJ judgements will have no role in the interpretation of laws passed by Parliament after the UK has left the EU. Pre-Brexit ECJ judgements will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases.

The role of post-Brexit ECJ judgements on pre-Brexit laws is still unclear.

Issues might arise with the two ‘D’s: delegated powers and devolution (remember the devolved states in all of this Brexit mess?)

Regarding delegated powers, the White Paper submitted that a “prohibitively large amount of primary legislation” would be required to make all the necessary changes to the body of EU law. Therefore, it will “provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The UK Government has acknowledged there will need to be some constraints on how ministers can use secondary legislation to change the law. The problem is that the White Paper is vague about what these constraints will be. For instance, the White Paper acknowledges that ministers’ new powers will have to be time limited, but does not actually discuss what these time limits will be.

The UK Government therefore is seeking a “discussion between Government and Parliament as to the most pragmatic and effective approach to take” on powers.

The issue of devolution poses another headache. The White Paper committed to “intensive discussions with the devolved administrations” about how policy powers repatriated to the UK from the EU will be distributed between the various states which comprise the UK.

Per the Queen’s Speech, the Bill committed to “maintaining the scope of devolved decision making powers immediately after EU-exit” and “having intensive discussion and consultation with devolved administrations on where lasting common frameworks are needed”.

Following the Speech, Prime Minister Theresa May appeared to admit that the consent via Sewel motions of the devolved parliaments may need to be sought before the passage of the Bill. Indeed, the Scottish Secretary David Mundell has recently echoed his previous assurances that a Legislative Consent Motion would be required for some parts of the Bill which are relevant to devolved competences. Other Brexit may also require Legislative Consent Motions.

Confused? You are in good company. For all this has raised the prospect that one or more of the devolved administrations could block the Bill if it does not propose that repatriated powers do not flow directly to them. And even better, there is uncertainty over the extent to which this vote could derail the Bill.

Why bother with such a Bill, it might be asked. Well, EU law covers areas such as environmental regulation, workers’ rights, and the regulation of financial services. Without the Repeal Bill, when the UK withdrawals from the EU, all these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in the UK statute book and leading to uncertainty and confusion. By carrying EU laws over into UK law, the UK Government plans to provide for what David Davis, Secretary of State for Exiting the EU, calls ‘a calm and orderly exit’ from the EU, while giving the UK Government and UK Parliament time to review, amend or scrap these laws in future.

Essentially, The purpose of the Bill is to provide certainty and continuity, ensuring the same rules and laws apply immediately after Brexit wherever possible, and supporting a smooth transition.

MPs will not have an opportunity to vote on the Bill until the autumn. This is perhaps good news for the Conservative government, which knows it will face stiff opposition to the bill. Indeed, it feels as though all parties in the Commons (sans the DUP, who have pledged to support the UK Government in all matters Brexit as part of their confidence and supply agreement) will unite in some form to make the Bill’s progress through Parliament hell for the Prime Minister.

The Labour Party, for example, has vowed to try to wreck the Brexit process by voting against the flagship “Repeal Bill”, unless Theresa May makes dramatic changes.

The Opposition usually gives the Government opportunity to change a Bill between its second and third reading, which would have postponed a Commons flashpoint until next year.

Yet Labour is arguing that government ministers have plenty of time to make those changes before second reading in October.

Keir Starmer, the party’s Brexit spokesman, said recently Labour would attempt to defeat the legislation in just three months’ time. Labour disagrees with most of the Bill’s contents, and is demanding the Bill includes full protection of rights for British workers and consumers, of environmental standards and the devolution of powers across the country. It is also determined to prevent a Government power grab through the use of delegated ‘Henry VIII powers’, allowing future changes without proper Parliamentary scrutiny.

Labour does accept it will not be able to defeat the Bill at its second reading, anticipated to be in October, without a revolt by some Conservative MPs, given Ms May’s working Commons majority of 12. However, it is hoping to play a game of ‘divide and conquer’ – the party believes it will be very difficult for the ten Scottish Conservative MPs to support the Repeal Bill without strong guarantees on devolution.

And it is not just Labour who is promising a difficult path for the UK Government. The Liberal Democrats, who after all fought the general election on a pledge to stage a second referendum on Brexit, also said they would make the passage of the Bill “hell”.

The publication of the Bill today is merely the first step in a long and complex journey for the Conservative Government. The real Parliamentary showdown will not be today. It will be come the autumn.

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