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David Mundy David Mundy Partner
09 May 2017

3: Great Repeal Bill – Skim milk masquerades as cream

In our last post, we concluded by saying that Parliament will be asked to pass the GRB in advance of the conclusion of the negotiations – one which granted powers to the Government to make subsidiary legislation to give effect to the outcome of those negotiations (perhaps, a ‘skimmed’ or ‘semi-skimmed’ GRB, as opposed to a ‘full-fat’ version).

This approach was initially trailed by the SSExEU in his evidence to the House of Commons’ Exiting the European Union Committee, on 14 December 2016:

‘If it is in the Queen’s Speech for the next Session we will need to get [the GRB] out of the way, get it done.
The reason I say that is because of what is consequential upon it. Bear in mind what it is going to do. It is pretty straightforward in its aims. It will take the acquis communautaire and put them pretty much – not quite – untouched into British law. After that, there will be consequential legislation. Some of that will be primary legislation and, therefore, we will need time to go through before the conclusion of the negotiation, or before the ratification of the negotiation anyway. That will take some time.
There will also be some secondary legislation to go through and I expect that to be quite technical. It will not be at all contentious but it will still require time, and there is a fair amount of it. We have been in the Union for 40-something years and we have got a lot of law—many thousands of pages of statutes—that depends on it and much of it is coined in ways that relate to European institutions or guidances that will no longer be there, so we will have to do that as well. Some of that is very technical and will take time. We have to ensure we have the time to do that.’

That approach seems to be confirmed in the White Paper Legislating for the United Kingdom’s Withdrawal from the European Union, which states that the GRB will also grant the government ‘limited power to implement the contents of any withdrawal agreement reached with the EU’ (the word ‘limited’ suggests it will be more ‘semi-skimmed’ than ‘skimmed’). The White Paper suggests that the GRB will grant Ministers powers, known (pejoratively) as Henry VIII powers, to make secondary legislation without full Parliamentary scrutiny to give effect to such a deal (as well as to ‘correct’ Acts of Parliament to ensure the coherence of ‘EU-derived law’ post-Brexit). On this, the government says it is:

‘mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed.’

Ministers have suggested such Henry VIII clauses may be time limited (up to three years after Brexit) and say they will not be used to change policy. But, given the scale of the task and uncertainty as to the rights and obligations to be imposed by EU-derived law post-Brexit, there will be considerable pressure on Ministers to use delegated legislation where, ordinarily, full Parliamentary scrutiny would be engaged.

An additional complexity is what the Prime Minister in her Lancaster House speech referred to as ‘phased process of implementation’:

‘This might be about our immigration controls, customs systems or the way in which we co-operate on criminal justice matters. Or it might be about the future legal and regulatory framework for financial services. For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer. And the interim arrangements we rely upon are likely to be a matter of negotiation … [W]e will do everything we can to phase in the new arrangements we require as Britain and the EU move towards our new partnership.’

This suggests that the GRB might be extremely high level (fully ‘skimmed’), with matters of implementation/post-Brexit detail to be dealt with in subsequent legislation. Such a GRB seems likely to be included in the first Queen’s Speech after the election – on 19 June 2017 – with the Government hoping it will pass through Parliament by the end of 2017/early 2018.

Far from being ‘straightforward’ (as SSExEU indicated), we suggest that a ‘skimmed’ or ‘semi-skimmed’ GRB will prove controversial both politically and constitutionally. The Prime Minister has already indicated that Parliament is to be given a vote on the final negotiated deal – is Parliament going to be willing to pass a GRB which gives significant powers to the Government prior to that vote? Sacrificing ‘scrutiny’ for ‘speed’ with questions of Parliamentary sovereignty at stake is, constitutionally, a dangerous game – the House of Lords’ Constitution Committee has already raised concerns about whether Parliament’s mechanisms to scrutinise legislation are sufficient to cope with the amount anticipated; Labour has claimed that Ministers would be handed sweeping powers to make hasty and ill thought-out laws.

Of course, much will turn on the outcome of the General Election: A Conservative Government with an overwhelming majority would fundamentally undermine the Opposition’s ability to oppose the Government’s GRB proposals – however ‘skimmed’ they may be.

‘Skim milk masquerades as cream’ (Gilbert & Sullivan, Things are Seldom What They Seem from HMS Pinafore)

 

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