The Great Withdrawal Bill
The Government has published the ‘Great Repeal Bill’, under the official title of the European Union (Withdrawal) Bill. The purpose of the Bill is to end the supremacy of EU law after ‘exit day’ and directly transpose any EU law made under the European Communities Act 1972 onto the UK statute book – around 20,000 pieces of direct and secondary legislation. It also gives ministers powers to amend and repeal primary and secondary legislation to ensure it remains applicable after Brexit- but in pursuing this goal it risks provoking parliamentary opposition on a number of fronts.
What is in the Bill?
The Bill is essential to the effective implementation of Brexit – without it, forty years’ worth of legislation would cease to apply, causing chaos across all sectors on the day after Brexit; 29 March 2019. By incorporating relevant EU law wholesale on the UK statute book, it will avoid this fate and ensure continuity in legislation.
Legislation applying to the UK under the ECA takes two forms; directly applicable EU law which applies to the UK without the need for domestic legislation (of which around 12,000 pieces of law exist), and EU directives which are implemented via secondary legislation (of which there are around 7,900 currently on the UK statute book). Thus the Bill sets out provisions to incorporate directly applicable EU law into UK law and to ‘save’ all EU derived domestic legislation (mostly in the form of statutory instruments).
Controversy and opposition
However, as the Government argues, much of this legislation will not function effectively without amendment. There will need to be surface level changes, for example where it refers to EU institutions or ‘ever closer union’, information sharing or reporting arrangements which will no longer be applicable. There will also be more substantial changes which cannot be made until details of the deal are clear. Therefore the Bill gives wide ranging delegated powers to ministers to ‘deal with deficiencies arising from withdrawal’. These powers, known as Henry VIII Powers, will enable ministers to amend primary legislation without the full scrutiny of Parliament, via secondary legislation.
Whilst this approach was expected, as the volume of primary legislation that would have been required would clog up parliamentary time for decades, the extent of these powers as outlined in the Bill is substantial. The wording, enabling ministers to ‘prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU’ gives ministers a wide remit to amend or repeal existing legislation without being subject to traditional Parliamentary scrutiny. The Government has repeatedly sought to play down fears about the use of these powers: for the most part, they are time limited to a maximum of two years after exit day, which goes some way to limiting their powers. However the breadth of the powers will be a sticking point for some in Parliament.
Labour’s Shadow Brexit Secretary Keir Starmer has already signaled that the Party will oppose the Bill if it does not meet six ‘tests’; one of which is limiting the scope of Henry VIII powers. The Bill as introduced also fails Labour’s test on the incorporation of the European Charter of Fundamental Rights into UK law, clearly stating ‘The charter of fundamental rights is not part of domestic law on or after exit day’.
This sets the Government on a collision course with Labour and the Lib Dems, who have vowed to give the Bill ‘hell’ as it progresses through Parliament and are seeking to work across party lines where possible. The lack of compromise on the face of the Bill could upset enough Remain voting Conservative MPs to cause the Government difficulties in the Commons.
Meanwhile the Scottish and Welsh governments have branded the Bill a ‘naked power grab’, claiming that it fails to return powers from the EU to the devolved administrations, instead retaining them in Westminster. Whilst this is not technically the remit of the Bill, if no concessions are made to provide further certainties this front the governments could refuse consent for the Bill, which could cause a constitutional crisis.
In the Lords where the Government has no majority, the focus will be on the more technical procedural elements of the Bill, such as the scrutiny procedures applicable to the wide ranging delegated which the Bill gives ministers the power to enact. This is expected to amount to over 1000 additional pieces of secondary legislation over the session.
The Bill suggests that the majority of this legislation will be subject only to negative resolutions, the lowest level of scrutiny required for secondary legislation, meaning relatively major changes to the statute book could be made by ministers with little or no oversight from Parliament. This is likely to be a major focus of the Lords which will want to be able to interrogate the Government’s plans, and the Lords Secondary Legislation Scrutiny Committee has already expressed concern about the procedure that will be applied to SIs coming out of the Bill.
One of the most significant consequences of the Bill will be the ability for ministers to create new regulatory regimes to replace those EU bodies that will no longer have jurisdiction once we leave. This will have a strong bearing on most business sectors, as many of those regulatory bodies (from the European Medicines Agency to the European Banking Authority) have a major impact on the work of the industries they regulate. The Bill makes provisions for any such delegated legislation to be subject to an affirmative procedure, whereby both houses have to debate and vote on the legislation, but in reality this still provides very limited scrutiny. It is likely that this will be a focus of both the Commons and the Lords and could be one area where we see substantial amendment.
On a broader note, any changes to the EU laws which are incorporated domestically will result in a divergence from the existing EU standards. This separation will undermine claims regarding regulatory ‘equivalence’ which may be a requirement of any future access to the single market and customs union arrangements.
The Bill has been widely anticipated and largely does what the White Paper published in March laid out. Ministers now face an anxious time waiting to see how amendments will play out. Tory MPs are unlikely to rebel and scupper the Bill at Second Reading – such a move would be catastrophic for the Conservative Party. But it is difficult to predict what will happen beyond that. There are numerous parliamentary interests ready to exert pressure via the amendment process meaning the Bill could get jammed up in Parliament causing serious delay at a time when the Government is hoping to secure an orderly agreement with Brussels. Whether Theresa May’s flimsy majority can hold throughout the passage of this Bill, and how many concessions it will need to make, will offer an insight as to whether her Government can deliver Brexit.