The so-called ‘Great Repeal Bill’ was published yesterday. This wide-ranging bill seeks to turn EU laws into British laws before the UK leaves the EU, thus avoiding a regulatory cliff edge and the chaos that would ensue if decades of laws and regulations, many of which the British parliament would otherwise have legislated on themselves, vanished overnight.
The bill has been controversial since its inception. Amongst some leave supporters, the idea of transferring EU laws into British laws before we leave sounds horrible; reducing the impact of Brexit on people and businesses isn’t desirable to some. Amongst a lot of remain supporters, transferring so many powers over legislation from parliament to the government raises a significant number of red flags regarding which parts of EU law will be amended or dropped without consultation, and how they will be implemented.
This was all before we actually saw the bill, which has caused outrage in itself. The bill gives government the power to remove EU laws at will, without having to consult anyone. The bill also has a clause ruling out adherence to the EU Charter of Fundamental Rights.
The idea of a bill with wide-ranging powers to make the conversion of EU law into UK law more simple is not entirely without merit- Brexit is the greatest legislative challenge in modern history. There are 20,000 EU legislative acts in force, with 5,000 applying to the whole of the union. These are supplemented with ECJ case law and secondary laws, which require more than just copying and pasting. This is a challenge the civil service may ordinarily need a decade to adequately address, but the nature of Brexit gives them just over a year and a half. Under normal circumstances, even if other considerations were irrelevant, parliament would struggle to do anything that isn’t directly connected to this task over that period anyway.
Attempting to meet these challenges with sweeping executive powers- so-called Henry VIII powers- presents separate issues. Earlier this year, the House of Lords constitution committee warned of the damage such a transfer of power away from parliament would have to our constitution. Furthermore, selecting which parts of EU law to keep and which to scrap with these powers represents far more serious constitutional issues than necessary and, with the bill committing to scrap one fundamental part of European law already, there is scope without check and balances built into the bill and a willingness for government to do so.
Both Labour and the Lib Dems have pledged to vote against. The Scottish government has made it clear that they will seek not to grant a legislative consent motion if the bill is passed in its current form, further complicating its passage. It is understood that the bill faces opposition from the Tory backbenches, too, and the Scottish Conservatives have reservations.
Westminster has the constitutional power to legislate on issues relating to devolved nations without the consent of the devolved parliaments, but doing so would break the Sewell convention and threatening to do so would strengthen parliamentary opposition. Should the Scottish parliament not grant consent, getting the votes needed may become more difficult than it is already set to be, as any Tory rebellion on the issue would be additionally legitimised.
As with every Conservative Prime Minister since Heath, Theresa May’s premiership may end with an argument about Europe. Defeat on a major Brexit bill would make her position untenable, with the tightrope she’s walking between the left and the right of her party ripped from under her.