The Great Repeal Bill—neither glorious nor democratic

The 1832 Great Reform Act is considered one of the central events in the development of our democracy (although its extension of the franchise was in fact small.) No doubt the 2017 Great Repeal Bill has been named with this venerable predecessor in mind, hinting at a glorious democratic legacy. But scrutiny of the Government’s White Paper on the Bill, issued on Thursday, leads one to wonder whether it will sap power from our elected assembly and concentrate it in ministerial office.

In the Introduction to the White Paper, David Davis, Secretary of State for Exiting the EU, asserts regarding the Brexit vote: “At the heart of that historic decision was sovereignty…The UK Parliament will unquestionably be sovereign again.” So it transpires that the Brexit vote was not primarily about reducing immigration after all. Davis’s statement also contradicts the words of the Government’s own February White Paper, issued immediately before the EU Withdrawal Act, which stated clearly (and correctly) that: “Parliament has remained sovereign throughout our membership of the EU.” If we were sovereign after all, what was the point of leaving the EU?

In any case given the huge magnitude and complexity of the Great Repeal Bill endeavour—the big idea being to translate all EU laws to the UK so we can carry on without anarchy before we figure out what to change—the steps taken so far are modest. There is no draft Bill and the Government has confirmed that it does not intend to publish one for consultation. The February White Paper was compact to say the least: only about 18 of its 37 pages containing anything of substance. The Bill itself will not come into force until after a withdrawal agreement is concluded and the UK has left the EU. Nor indeed, is this to be the only Bill. We are told the Government will also introduce further legislation during the next two years—for example, separate Bills on customs and immigration.

So what is to be included in the Great Repeal Bill, and why will it be such a gargantuan endeavour? It has two main tasks. First, the Bill is intended to remove the European Communities Act 1972 from the statute book following completion of Brexit negotiations—hence the “repeal” terminology. However, secondly, the Bill will also conserve more than it repeals: it will convert EU law into UK law, and then allow the UK government to decide if and when to repeal, amend or retain individual measures in the future. Otherwise, given the many EU provisions currently applicable in the UK, there would be a risk of huge gaps in national law on exit day.

The problem of how to avoid such gaps in national law on independence, secession or disaffiliation from a former legal power is not new. One can draw comparisons with “continuance clauses” of former colonies on independence from the UK. (One hopes that government lawyers are looking at these precedents). It is this second task of conversion and continuance of EU law into national law which will be so immense in nature. For we are told that the Government actually does not know how many EU laws are currently in force: the White Paper states “there is no single figure for how much EU law already forms part of UK law,” although the figures are in the tens of thousands. Nine months into the Brexit process, this is worrying, to say the least.

However, it gets more complicated. For merely transferring EU law into UK law is not enough. For example, current legislation may refer to the involvement of an EU institution or EU regime or system. What (if any) will their role be if EU law is brought home, and how must legislation be amended to take account of this? To illustrate: the European Medicines Agency is an EU agency for the evaluation of medicinal products, with a function similar to aspects of the US Food and Drug Administration Agency. It is based in London (and will have to relocate on Brexit, with British job losses). Post-Brexit, what drug evaluation scheme will the UK use, and how will it adapt current EU legislation? Such matters will arise with  hundreds of EU provisions, requiring thought, time, expertise and expense before the law will be workable.

There is also the much reviled European Court of Justice (CJEU). It is the task of the Great Repeal Bill (and  Brexit more generally) to remove the jurisdiction of the European Court as far as the UK is concerned. Yet a large part of the EU law that must be repatriated on Brexit is to be found in decisions of the Court, rather than in EU legislation (for example, certain provisions on workers rights or EU environmental law). The White Paper states: “the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court,” although future CJEU cases will not have this precedent status. While it will come as a relief to many that key provisions, on for example, workers’ rights, will not be lost because they are to be found in existing case law rather than EU legislation, nonetheless the status of CJEU precedents will provide lawyers with a field day and annoy hard Brexiteers, who will not wish any acknowledgement of CJEU case law.

There are two further matters of concern. The first concerns secondary legislation, described in some quarters as a “power grab” for Whitehall. The White Paper explains that the “Great Repeal Bill” will provide a power to correct the UK statute book using secondary legislation—ie effectively ministerial edict, as opposed to the legislation,  debate and committee deliberation that is more usual. Westminster simply will not have enough time to issue primary legislation to manage the manifold repeals or amendments of EU law necessary, so much of this will fall to the Executive, using powers delegated to it by the Great Repeal Bill.

The problem is that Parliament has a minimal role in secondary legislation. Indeed, it is clear that the Great Repeal Bill will include a “Henry VIII clause,” a provision that enables primary legislation to be amended or repealed by secondary legislation. And, as the appellation “Henry VIII” suggests, such measures are a very unparliamentary and undemocratic way to repeal or amend former EU law. The Government acknowledges that “it is important that the purposes for which the power can be used are limited.” However the White Paper does not propose any new scrutiny methods for these secondary powers, so it will be difficult for Parliament to exercise any meaningful scrutiny. So much for “taking back control.”

Secondly, the White Paper is liable to provoke devolved administrations in Edinburgh, Cardiff and Belfast, at a time when the Union is fragile. The aim of the Bill is to convert EU law into national law. However, a good part of EU law relates to devolved competences—for example, agriculture, fisheries, public procurement, environmental law. Although the White Paper envisages that “the outcome of this process will be a significant increase in the decision making power of each devolved administration,” it is nonetheless clear there can be no assumption that powers repatriated from the EU will be delivered to devolved institutions—even if those powers concern areas already devolved. For the White Paper states: “As powers are repatriated from the EU, it will be important to ensure that stability and certainty is not compromised, and that the effective functioning of the UK single market is maintained.” Scottish First Minister Nicola Sturgeon has already said that the UK Government is planning another “power grab,” because of its failure to guarantee that returned powers will remit to the devolved capitals.

The Sewel Convention requires consent of the devolved legislatures if Westminster appropriates any power returned from the EU that falls within a devolved competence. (The Supreme Court in the big Brexit Case brought by Gina Miller may have rejected the justiciability of the Sewel Convention, despite its entrenchment in the 2016 Scotland Act, but no-one doubts its binding nature as a political convention). But the devolved legislatures may not give their consent, indeed are extremely unlikely to do so if Westminster legislation appropriates devolved powers. What happens then?

To conclude: the Great Repeal Bill raises many serious concerns of a constitutional nature. If Brexit was about “taking back control,” then it is vital that this control is not immediately appropriated by the Executive, by Government ministers, at the expense of Westminster and the devolved parliaments. That would be a supreme irony. The Miller case underlined Parliament’s role in leaving the EU. But Parliament must assert itself robustly. Otherwise there will be nothing glorious or democratic about Brexit.