Nick Kent is a writer and consultant specialising in EU affairs who was Director of Research at British Influence from 2013-2016.
The government has announced its plans for ensuring legal certainty when the UK leaves the EU. Ironically termed the “Great Repeal Bill”, its effect will not be the repeal of many laws but the incorporation of thousands of EU rules into UK law.
In a White Paper, ministers have said that this Bill will:
- repeal the European Communities Act 1972
- incorporate existing EU law into domestic law so that there is continuity when we leave
- grant ministers powers to alter existing EU law by secondary legislation
None of these objectives are straightforward and all will provoke vigorous parliamentary debate.
Timing
The question of when this Bill would come into force is unusually contentious because its effect will be to take us out of the EU. Normally a technical matter and often done by Order, many parliamentarians will object strongly to ending the UK’s EU membership by the signing of an Order that they cannot amend and which Parliament might only be able to reject after it had come into force.
Their argument is supported by the warning from former Supreme Court judge David Hope that just as the government had to get Parliament to authorise the triggering of Article 50 through primary legislation, so it must get the same kind of authorisation for either the agreement it signs with the EU or the act of leaving the EU.
‘Great Copy & Paste Bill’
Incorporating existing EU law into UK law is necessary to ensure legal continuity when the UK leaves. But there is a lot of EU law to work through to ensure that it is all properly incorporated. The judgments of the European Court will have to be added in and further government Bills will be needed in some areas, such as immigration.
And let us be clear: all we will have done at the end of this process will have been to keep our law the same as EU law. There will have been no bonfire of “red tape”, no removal of the EU “straitjacket” that Vote Leave claimed held back the UK economy. After two years, around 1,000 pieces of legislation and many hours of debate, we shall be back just where we started.
Henry VIII powers
To get there, the government says it needs new powers to make this process easier. It will use a legal device known as “Henry VIII clauses” to amend primary legislation by statutory instrument. Ministers are right this will be necessary – up to a point. There are thousands of references to the EU, its laws and its agencies in our law and it would be impractical to replace them all by primary legislation.
But it would be a major loss of parliamentary sovereignty if ministers chose to make significant changes to current law by this means. While they claim they don’t want to do that, parliamentarians are unconvinced and will seek to restrict ministers’ powers.
Westminster ‘power grab’
Two other issues are of great importance too. The first is how the government will decide to share powers brought back from the EU with the devolved administrations. Scotland’s first minister has already accused ministers of a “power grab”, claiming that they want to keep at Westminster some of the powers over policies that are usually devolved.
While this is premature, there are difficult decisions to be taken. For example, if the UK government wants a free trade agreement with New Zealand that might mean cutting tariffs on imports of New Zealand lamb – that could have devastating consequences for Scottish and Welsh sheep farmers. Should Westminster be able to reach such an agreement when agriculture is a devolved responsibility? London thinks so; Cardiff and Edinburgh disagree.
Where does Brussels fit?
Finally, today’s White Paper barely mentions the agreement that the UK hopes to reach with the EU. This is a major omission – the terms of the agreement could overturn some of the commitments in the White Paper.
Ministers have been keen to say that the UK will not be bound by future decisions of the European Court of Justice but, if we want to trade with the EU on anything like the terms we do now, then we will have to keep our law in line with theirs. That is not “taking back control”, it is in fact conceding control to bodies over which we will have little or no influence once we have left the EU.
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Edited by Luke Lythgoe
The utter futility and stupidity of the whole so-called self-destructive “Brexit” farce is summed up accurately by this well written and researched article. Sadly, the right-wing dominated media will ignore most of it.
Apart from the meaningless “Let’s take back control” I have yet to hear anything positive which will come out of this stupid attempt to turn the clock back to the early 1970s.
apart from the repetition of the lazy inaccurate description of this as a “copy and paste” exercise ( which the article correctly contradicts) this is good . The EU Parliamentary resolution published yesterday shows that there will be and can be no ” free trade” or special partnership with the 27 if the UK dilutes EU social , environmental and competitive protections which would give it a competitive advantage. As the 27 are our major trading partners ,if we leave the single market we are heading for regulatory “taxation” without representation – or the deep blue sea the depths of which we know not. Both materially reduce ” control”