6 July 2017

The Repeal Bill is of major constitutional significance

The Bill is expected to be medium-length around 50-60 pages, much longer than the Article 50 bill, and closely mirror the objectives set out by the Government in its March 2017 White Paper. This said that the Bill will do three things:

  1. It will repeal the 1972 European Communities Act (ECA). The ECA was momentous in establishing a new form of law in the UK, giving EU law and European court case law supremacy over domestic law and, in some cases, allowing for the direct effect of EU law. Repealing the Act will end the general supremacy of EU law and will mean that these rules, rights and regulations will have equivalent standing to UK domestic law post-Brexit.
  2. It will convert existing EU law, at the point of departure, into UK law. This is to ensure continuity and regulatory certainty for businesses and individuals. The Government’s objective is that “as a general rule, the same rules and laws will apply after we leave the EU as they did before.” The process will not involve copying out each and every EU regulation. The Bill will simply ensure that the provisions of EU regulations are converted into UK law and will continue to apply until Parliament legislates otherwise. This within Whitehall is described as a “trapdoor effect” – the body of EU law falls into UK domestic law.
  3. The Bill will also create powers to enact secondary legislation to ensure the proper functioning of existing EU law. This will be used to amend laws that would “no longer operate correctly” once the UK leaves the EU, such as those which currently refer to the enforcement powers of EU institutions rather than UK institutions. In addition, since the Repeal Bill will be going through Parliament in parallel to the EU negotiations, the Bill will also provide powers for domestic law to be updated to reflect relevant provisions in the UK-EU withdrawal agreement.

Once on the UK statute book, Parliament will be able to amend, repeal or replace any of the body of previously EU law. But the Government is clear that it does not intend to use the Repeal Bill to alter substantive policy. In areas where the UK will need to develop independent policies upon leaving the EU – such as customs, trade, immigration, agriculture and fisheries – the Government used the recent Queen’s Speech  to commit to bringing forward standalone primary legislation.

Article 50 debates could prove to be a sideshow in comparison

Given the constitutional importance of this Bill, it will almost certainly be subject to a Committee of the Whole House. This means the committee stage of the bill is on the floor of the house, not in some upstairs corridor. It allows all MPs to take part in the debate, propose amendments and to vote on the Bill’s contents. Just as the bill to trigger Article 50 became an opportunity for all corners to rehearse and re-fight the arguments of the referendum campaign, the Repeal Bill is likely to prove the same.

We are likely to enter Committee stage just as Brexit negotiations in Brussels start to hit the meaty end of negotiating the broader terms of the UK’s withdrawal agreement and transition to a new long-term relationship. Against this backdrop, tempers on all sides are likely to be high.

With the Government seemingly on the back foot and Theresa May without a majority, MPs from all parties may seek to use the process to table amendments in support of their preferred mode of Brexit. The Evening Standard has today reported that Labour and, to a lesser extent, Conservative MPs and Peers are already plotting how to secure various amendments.

Passage of the Bill rests on pact to keep everything the same

The fate of the Repeal Bill rests on a delicate mutual understanding amongst MPs and Peers in the House of Lords that if anyone seeks to use its passage through Parliament either to water-down or build on the rights and protections of existing EU legislation, then the whole process could easily blow up. This pact will not be easy to maintain.

One example where the Government may have a headache is its decision, outlined in the White Paper, that the EU’s Charter of Fundamental Rights “will not be converted into UK law” by the Repeal Bill. The Government correctly notes that because the Charter “was not designed to create any new rights” and “only applies to member states when acting within the scope of EU law”, its relevance “is removed by our withdrawal from the EU.” However, given the politically sensitive nature of human rights issues, it would not be surprising to see amendments demanding it somehow be included as part of this exercise.

Politics of Brexit mean the Bill is very likely to pass but plenty of scope for Government difficulty

The wider politics of Brexit and the attitude of the Labour leadership to date strongly suggest that Labour will not seek to defeat the Government on Third Reading of the Bill. It is extremely likely to pass into law.

In its manifesto, the Labour Party said it would replace the Government’s Bill with its own “EU Rights and Protections Bill” – but this was designed to do exactly the same job as the Government is proposing with the Repeal Bill. In April 2017, Shadow Brexit Secretary Keir Starmer said that Labour’s EU Rights and Protections Bill would “make sure that all EU-derived laws – including workplace laws, consumer rights and environmental protections – are fully protected without qualifications, limitations or sunset clauses.”

Meanwhile, Jeremy Corbyn’s recent decision to fire cabinet members for defying orders not to back an EU-related amendment to the Queen’s Speech and previously on Article 50, illustrates that the party leadership does not want to be seen as being on the wrong side of or “blocking” the EU referendum result.

However, there remains much potential for parliamentary shenanigans.  Firstly, as the Government notes in its White Paper, the Bill itself is only the tip of the iceberg. Reams of secondary legislation will need to be passed under “delegated powers” to make corrections to EU law, such as giving UK bodies powers that are currently conferred on EU agencies. The Government estimates that between 800 and 1,000 statutory instruments (SIs) will be required to do this.

Firstly, the use of ‘delegated powers’ and SIs is controversial in its own right. SIs provide a means for existing Acts of Parliament to be amended, updated or enforced, without the need to pass a new act. These powers vary from very narrow technical amendments (for instance, on the date of entry into force), to wider powers to fill in the necessary detail that was too complex to include within the broad provisions of the Act.

SIs have many practical advantages: they save time by allowing a fast-tracked method to introduce new pieces of law. On the other hand, they have also been described as displaying “contempt for democracy,” given they don’t garner the same public attention as openly debated Acts of Parliament – although, given the current climate, even secondary legislation on Brexit may prove an exception to this! There are also concerns that Parliament is not always able effectively to scrutinise and control use of these instruments. In the past, they have been used controversially to make changes to the electoral register, to curbs maintenance grants for students, and – in perhaps the most high profile case – to make changes to the tax credit system under Chancellor George Osborne (before being rejected by the House of Lords).

The House of Lords’ Select Committee on the Constitution noted in March 2017 that it is clear the Government will need some flexibility on the use of secondary legislation but that this should be tightly controlled:

Parliament should ensure that the delegated powers granted under the ‘Great Repeal Bill’ are as limited as possible. However, the degree of uncertainty as to what exactly the process of converting EU law into UK law will involve— and, in particular, the unknown outcomes of the UK’s ongoing Article 50 negotiations with the EU—will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary.

Nevertheless, expect the Labour Party to complain that the proposed delegated powers and use of SIs does not offer a sufficient degree of parliamentary scrutiny and to propose amendments that limit their use. The Government has already committed to time-limiting these delegated powers. It will also argue that SIs are already used regularly. They should also point out that, as an EU member, SIs are often used to implement EU law and these SI are not subject to significant debate. It would be ironic for concerns to be raised about SIs being used to implement withdrawal.

Secondly, as the Government has noted, many EU rules currently refer to European Commission, EU regulators or agencies and these need to be substituted with UK equivalents. For example, the UK’S Offshore Petroleum Activities (Conservation of Habitats) Regulation 2001 requires domestic regulators to obtain an opinion from the European Commission. This will need to be changed or removed. Otherwise this requirement would prevent certain projects from going ahead. The transformation of these regulatory powers is likely to provide plenty of scope for political battles and controversy.

Thirdly, the interaction with the devolved administrations and legislatures is another potential flash point. The Government has said that it expects that “the outcome of this process will be a significant increase in the decision making power of each devolved administration.” The SNP and other nationalists are likely to demand that as many powers as possible are devolved. It is not clear how much scope the Bill itself will provide for further devolution or whether this will be for subsequent debate.

So, there is plenty of scope for a rocky ride for the Repeal Bill. There could well be large number of almighty rows and even a few symbolic Government defeats on amendments. But ultimately everyone recognises this Bill is necessary to avoid a legal vacuum post-Brexit and, given Labour’s record on Brexit votes so far, the main thrust of the Bill is likely to pass.