May the battle commence - with the publication of the Great Repeal Bill

14 Jul 17

The European Union (Withdrawal) Bill - known as the Great Repeal Bill - was published yesterday. It threw up a range of issues, including Scotland and Wales expressing discontent. And this is just the first of at least eight Brexit bills, points out Jill Rutter. Here she highlights some of the issues this proposed legislation has raised so far.

The so-called Great Repeal Bill was the centrepiece of the prime minister’s conference speech last year as she basked in Conservative adoration.

Nine months later, and in much less propitious political circumstances, her government has finally published the more modestly entitled European Union (Withdrawal) Bill. In fact, only clause one withdraws the UK by repealing the 1972 European Communities Act.

The other 19 (and eight lengthy schedules) are about ensuring workable continuity – and that is where the government already looks to be heading for showdowns in parliament and with the devolved governments. 

Flashpoint one: extensive Henry VIII powers and limited parliamentary scrutiny

Ministers warned in the white paper on the bill that they would take secondary legislation powers to correct defects in EU law. This bill makes clear how extensive those powers could be – and many commentators are saying that these are the broadest powers they have seen a government attempt to take.

To some extent that is inevitable. Ministers are legislating in advance of knowing their destination – as Stephen Laws pointed out at our Repeal Bill event. They are even including an urgent power to make changes for a month with no parliamentary procedure at all – presumably to cope with the prospect of a massive last minute essay crisis of legislation if negotiations go down to the wire.

Most of the secondary legislation will go through “negative procedure”, and will only be debated if parliament objects. “Affirmative procedure" – where a committee debate is guaranteed – is required only in limited cases where ministers create a new public authority, transfer powers to such an authority, create a new offence, charge a fee or “creates or amends a power to legislate”. 

The government lost a schedule of the Public Bodies Bill in 2010 when the House of Lords objected to their taking powers to abolish quangos through secondary legislation. It will be interesting to see how sanguine parliament is about government adding to powers in this way. A point to note is that a lot of the provisions are in italics, which means they relate to money, and that is an area where the Lords have limited say.

The government always said that it will not use secondary legislation to make substantive changes. One battleground will be what government regards as technical (deleting a reference to a supervising EU institution) and others regard as leaving a yawning governance gap.

One concession the government has made, as we recommended, is that these powers should be time-limited. But they run after the (as yet unspecified) Brexit day – for two years. Will parliament be happy with that?

Flashpoint two: Scotland and Wales threaten to refuse consent

It took under an hour for the Scottish and Welsh governments to give notice that they were not happy with the way in which the bill treats the transfer of powers, which they described as “a naked power-grab”.

Indeed, the government had advance warning that transferring EU-derived law in devolved areas such as agriculture and the environment back to Westminster – and then being prepared to discuss what and how further powers would be devolved was not going to go down well in Holyrood and Cardiff.

What happens next is not clear. The government has previously conceded that the consent of the devolved bodies would be sought for this bill. Legislative consent is just a convention, not a legal requirement, and the UK Parliament remains sovereign, meaning it can in extremis override the devolved bodies even on devolved matters.

But that would be unprecedented and messy. To avoid months of constitutional wrangling and resentment, the government urgently needs more effective ways of working with the devolved governments, as we have consistently argued ever since the referendum

Flashpoint three (averted?): The judiciary get helpful guidance with the right amount of discretion

As promised by the government’s white paper in March, the bill says that British judges are to interpret EU-derived law in accordance with pre-Brexit European Court of Justice (ECJ) case law, which is retained in UK law on exit day. But the bill goes further and provides the extra clarity top judges were seeking to avoid being exposed if they took account of post-Brexit judgments. The bill says that a British court is “not bound” by any decisions made by the European Court after exit day, but “may have regard” to “anything done” by the Court of Justice of the European Union (CJEU), or by another EU entity, after Brexit, if the British court considers it “appropriate” to do so. This is broadly in line with the IfG's recommendations.

The bill also mirrors our recommendation on how the Supreme Court (and, in certain types of case, the High Court) should depart from previous ECJ judgements: it “must apply the same test as it would in deciding whether to depart from its own case law”. This gives judges the discretion they need.

Flashpoint four: Entrenching or removing rights?

Labour gave notice that it will make the removal of the European Charter of Fundamental Rights a sticking point. The government says it is unnecessary as these rights are already incorporated through EU law. But Labour – whose manifesto promised a renamed EU Rights and Protections Bill – will seek further safeguards to entrench rights and have promised forensic examination to prevent backdoor weakening.

Flashpoint five: Will the bill derail Brexit?

It is not just the substance of the bill that is a problem. The government could face other problems if it tries to get what might be seen as a restrictive timetable motion through as its easier to rebel on this than the substance. The wide scope offers a field day for amendments.

The Liberal Democrats, channelling their inner Trump, are already promising to make the government’s life impossible and backbenchers will find an opportunity to flex their new found muscles.

The Speaker, who is a tennis fan, may feel like a ball at Wimbledon, being batted between both sides on which and how widely to cast allowed amendments. And that is before the bill reaches the Lords where the government does not even come close to a majority, with or without the DUP.

And this is only the first of the (at least) eight Brexit bills which will dominate this parliament. 

This blog was first publishing on the Institute for Government's website

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