30 March 2017

Today David Davis’s Department for Exiting the European Union published a White Paper on the Great Repeal Bill. Or rather, they published a document that carried the more prosaic header: Legislating for the United Kingdom’s withdrawal from the European Union. It’s reasonably short, but well-written and clear.

The point of the badly-named Great Repeal Bill is to preserve the legal status quo – to avoid the uncertainty for business, society, and public authorities which would otherwise result from leaving the EU, and in particular from scrapping the European Communities Act. What the Government hopes to achieve is to ensure the same rules and laws apply in the UK the day after we leave the EU as the day before. If they don’t there will be significant uncertainty and that will affect the economy and jobs.

Converting EU law into domestic law is a sensible decision. The Government imagines the bill as a sort of trapdoor. They are hoping that the Bill will allow EU law to essentially drop through, down a floor, into UK law. In the White Paper it’s made clear that “EU regulation will not be ‘copied out’ into UK law regulation by regulation.” Contrary to some suggestions, we won’t have the Government – or rather its lawyers and parliamentary draftsmen – copying and pasting vast chunks of rules.

The key question is whether the political consensus on this Bill holds over the months ahead. Will Labour, and other opposition parties, seek to expand protections, for example on the environment or rules covering workers’ rights? Might they insist that the Government amends the bill to add protections for, say, the self-employed? On the other hand, could Tory backbenchers decide that they don’t want to keep the Working Time Directive and that we ought to scrap the Habitats Directive to save developers from worrying about newts?

In many ways, this Bill could be much more vulnerable than the Article 50 Bill. The EU (Notification of Withdrawal) Act 2017 was a simple, short, clear law which was designed only to fulfil the requirements following the Supreme Court’s decision on Miller. Labour was careful not to be seen to be on the ‘wrong side’ or to be ‘blocking’ Brexit. And, the Lords were conscious that holding a Referendum had been a clear manifesto pledge. Those factors do not apply for the Great Repeal Bill in the same way.

The White Paper has promised that there will be other bills to cover new policies and specifically mentions Immigration and Customs. Yet despite the efforts of Davis to stress that the Great Repeal bill is not a “vehicle for policy change,” it remains possible that it will be hijacked for precisely that purpose. The weasel word in the text of the White Paper is “major” – “the Great Repeal Bill will not aim to make major changes to policy”. It’s hard to see where the line would be drawn here and there’s a big political danger if one person’s minor changes are another’s major concern.

There are, however, several things in Theresa May’s favour. Most importantly she has convinced Leavers that she’s serious about Brexit. She’s repeated a pithy aphorism – Brexit means Brexit. There has been much hand-wringing over this supposed-tautology. But what she is saying is clear: May is saying the Referendum result meant that the UK will leave the EU. Remarkably, however many times she said it, it seemed that for many the penny hadn’t dropped. In fact Maltese PM Joseph Muscat said just yesterday that many on the Continent hadn’t really believed Britain would leave.

My judgment is that as long as the strongly Eurosceptic/Leaver wing of the Tories think that Theresa May is doing the right thing overall, and crucially that she isn’t about to concede on any of the three negotiating red lines (no direct ECJ control in UK, ending free movement, and no ‘vast’ sums of money sent to Brussels), she is likely to get this bill through. But if that changes things could get very difficult.

Also, the Government seems to have learned from the last few months. First of all, it has proactively offered up a White Paper for discussion. Second, it speaks carefully about this being the “beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach.” Third, it admits that there is a balance to be struck between the need for Parliamentary scrutiny and the time pressure of the Article 50 process. Fourth, it carefully mentions, in those little boxes beloved of White Paper-drafters in Whitehall, environmental protections, workers’ rights and equality. Fifth, it mentions the need to consult on future changes to the regulatory framework including with Parliament (in this case in the context of environmental protections).

Once the Bill is done and we are outside the EU then there needs to be a comprehensive process to examine on a zero-based basis every piece of regulation. But that must not be done now. It’s a project for the next Parliament. The debate is already flowing on it, including through a new campaign in the Telegraph. The Government must take that debate seriously but needs to focus now on dealing with Brexit and its direct challenges first.

There’s some concern about Government using secondary legislation and so-called Henry VIIIth clauses to accomplish much of what’s required to protect the acquis. In general, such measures are best avoided but the Government is right to point to the wider use of secondary legislation, in particular for making the legal changes which our EU membership currently requires. It’s ironic indeed for some to complain about the lack of scrutiny over this Bill – or rather its overreliance on secondary legislation – when they happily accepted the mass use of secondary legislation (without any possibility of scrutiny) for EU regulations. In addition, there’s a clear and specific case for using such measures here: the Government is not seeking to change the law but to preserve it. As long as it sticks to that, and the powers it gives itself are limited in scope, and with a time limit, then this seems a reasonable approach, not least given the time pressures.

There will be more time to consider the right approach to regulation in the future, and it’s one to which Open Europe will be returning. Theresa May will have a hard job to navigate between those calling for a regulatory bonfire and her commitments in moral, policy and political terms to protect workers’ rights and indeed extend them to the self-employed. We will also pick up more on the question of how our Supreme Court should disentangle itself from ECJ case law and judgements. And, we will examine where the balance should lie in terms of returning powers to Westminster versus the Devolved Assemblies.