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14 July 2017

15: Great Repeal Bill – Hey ho, let’s go!

The GRB has been published. It had its first reading in Parliament yesterday (13 July 2017), with David Davis, the SSExEU, describing it as:

‘one of the most significant pieces of legislation that has ever passed through Parliament and a major milestone in the process of our withdrawal from the European Union’.

In the weeks ahead, we’ll be looking at the provisions in detail but let’s start with an overview. You can also watch our David Mundy discussing the Bill on BBC News.

First, the title. We realised it wouldn’t be called the Great Repeal Bill some time ago, given parliamentary rules preventing legislation from having ‘propagandist’ titles. The formal title, the European Union (Withdrawal) Bill reflects the fact that although the UK will withdraw from the EU by means of a ratified Treaty, the Government also needs (because the UK is a ‘dualist’ state) to apply that change domestically. This blog (which won’t be changing its name) will from now on refer to it simply as the Bill.

Turning to the operative provisions, the Bill contains 19 clauses and nine Schedules and runs to just over sixty pages. Many of the provisions are detailed and technical, but, in summary, they do the following (hyperlinks are to our earlier posts of particular relevance):

  • repeal the ECA (clause 1)
  • maintain EU law as it applies in the UK at ‘exit date’ by:
    • Preserving ‘EU-derived domestic legislation’ (eg UK regulations made under the ECA) (clause 2);
    • Converting ‘direct EU legislation’ (eg EU Regulations) into domestic law (clause 3);
    • Converting into domestic law other EU rights and obligations (eg Treaty rights) (clause 4); and
    • subject to the exceptions in Clause 5 (significantly, that the Charter of Fundamental Rights is not preserved, and EU law has no supremacy in respect of UK legislation passed on or after ‘exit day’) and Schedule 1.
  • grant to Ministers powers to make secondary legislation to:
    • correct laws that would no longer operate appropriately after the ‘exit date’ (clause 7);
    • ensure continued compliance with international obligations (clause 8); and
    • implement the withdrawal agreement to be reached between the EU27 and the UK (clause 9).
  • grant the devolved assemblies (ie the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly) similar powers to deal with deficiencies arising from withdrawal (clause 10 and Schedule 2), and recast the current requirement to comply with EU law into a requirement to comply with ‘EU-retained law’ (clause 11 and Schedule 3);
  • provide powers in connection with fees and charges (eg that Ministers, etc may incur expenditure in preparation for the making of statutory instruments) (clause 12 and Schedule 4);
  • set out rules on the publication of, and rules of evidence for, retained EU law and other relevant documents and instruments (clause 13 and Schedule 5);
  • define the many terms used in the Bill (eg ‘domestic law’, ‘enactment’, ‘exit day’, ‘retained direct EU legislation’) (clause 14) and list where else in the Bill those definitions are found (clause 15);
  • detail how the secondary legislation which is made by Ministers under the authority of the Bill is to be scrutinised by Parliament (clause 16 and Schedule 7);
  • grant further powers to Ministers to make any secondary legislation (which is ‘appropriate as a consequence of the Bill’) to amend other any legislation passed during the current Parliamentary session, and repeal certain existing legislation (clause 17 and Schedules 8 and 9)
  • provide that the Bill applies to the whole of the UK (and may, to a specified extent, to Gibraltar) (clause 18); and
  • bring certain provisions of the Bill into force on the day the Bill becomes law, and others (broadly, clauses 1 to 6, 11 and 13) on a day to be set by a Minister.

The Bill’s Second Reading (when Parliament considers and votes on the principle of the Bill) is not until the autumn but certain battle lines have already been drawn.

Opposition MPs are expressing great concern about the wide-ranging powers being granted to government ministers to ‘correct’ or ‘amend’ deficiencies in existing primary and secondary legislation by means of regulations – the so-called ‘Henry VIII powers’. Many Opposition MPs have pointed out that one person’s ‘correction’ is another’s ‘fundamental change’, and so such changes should be subject to appropriate Parliamentary scrutiny.

These MPs will be particularly alarmed by the provisions in Schedule 7 which allow Ministers to make new regulations ‘in certain urgent cases’ without any prior Parliamentary scrutiny, and that Ministers will be able to use these so-called ‘Henry VIII powers’ for up to two years after exit day, reflecting the government’s fear that it is simply impossible to do all the work beforehand (particularly if the exit negotiations go to the wire).

Many worry that existing EU-derived rights and protections will be attacked by the Tory right keen to ‘cut red tape’ and other burdens on business. Workers’ rights, the environment, human rights, consumer protection and financial regulation are all identified as particularly vulnerable.

The Liberal Democrats have drawn attention to the fact that the Charter of Fundamental Rights will not be transposed into domestic law. Outgoing leader Tim Farron, said:

‘I cannot understand what issue the government have with it. Is it the right to life, the ban on torture, protection against slavery, the right to a fair trial, respect for privacy, freedom of thought and religion, free speech and peaceful protest? These are not frustrations, these are integral to what it is to be British.’

MPs are also concerned that the UK will fail to ‘keep pace’ with EU rights as they continue to develop in the future. Harriet Harman said, in respect of equal pay and women’s rights, that:

‘[W]e don’t want to … be frozen in time and not have the advantages that women in the rest of Europe are going to get. We don’t want women in this country to be Europe’s poor relations when it comes to their rights at work.’

One of the clearest battlegrounds to emerge is between the Government and the Scottish and Welsh administrations over devolved powers (of course, Northern Ireland devolved government is suspended and the largest party, the DUP, has a confidence and supply arrangement with the Government). In a joint statement, Scottish and Welsh First Ministers Nicola Sturgeon and Carwyn Jones said:

‘We … have put forward constructive proposals about how we can deliver an outcome which will protect the interests of all the nations in the UK, safeguard our economies and respect devolution. Regrettably, the bill does not do this. Instead, it is a naked power grab, an attack on the founding principles of devolution and could destabilise our economies.’
‘Hey ho, let’s go!’ (The Ramones, Blitzkrieg Bop)
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