In a democracy, it is for a government to justify any extension to its powers
The premise is relatively simple. You can’t repeal 14 per cent of a society’s laws at once without causing chaos.
There isn’t time to sort through every law that originated in the EU before Brexit day, so the GRB will transfer the entire body of EU law (acquis communitaire) into domestic law.
Parliament will have plenty time to consider whether repeal each law in due course. The problem is, it can’t be done. The Bill’s apparent simplicity obscures the labyrinthine complexity at the heart of the issue.
We don’t know what EU law will be transferred, we don’t know what class of domestic law it will be transferred into, and we don’t know who will take these decisions, how they will be made, or how they will be held accountable.
The government’s promised White Paper may resolve some of these issues. It must, however, be specific and thorough in addressing the complexities of the issue. The White Paper that proceeded parliament’s consent for the Article 50 notice was composed almost entirely of generalities.
It neglected fundamental issues, such as whether the notice was unilaterally revocable. As a result, parliament voted to trigger Article 50 without knowing the legal significance of that action.
It isn’t possible to transfer the entire acquis into UK law. Some laws empower EU institutions to make decisions for the UK, some involve reciprocal benefits with other member states (which will no longer be reciprocated after Brexit).
Others give individuals rights at EU level (such as the right to vote for the European Parliament), or provide for the constitutional structure of the EU itself. It would be, at best, absurd and, at worst, damaging, to transfer these norms into UK law.
David Davis clarified that the acquis will only be transferred ‘wherever practical’. But who will decide which laws it is ‘practical’ to transfer? If it’s parliament then the process will take a long time.
If it is ministers or civil servants, then the GRB will empower the executive to dispense up to 14 per cent of the laws currently in effect in the UK as it sees fit. This means protections for the environment, employment rights, and free movement (to name but a few) will be vulnerable to repeal without vote in parliament.
The GRB must, therefore, include mechanisms of accountability to ensure that ministers can’t trade away important rights in the name of ‘practicality’.
Unless the Bill contains a clear definition of what is meant by ‘practicality’, identifies who will make that decision, how they will be empowered, and how those powers will be accountable, parliament could find itself side-lined as a meaningful decision-making body.
The issue of ‘Henry VIII powers’ is particularly concerning. These allow ministers to overturn primary legislation without a vote in Parliament. Primary legislation is made with a vote in parliament and, normally, cannot be repealed without another vote.
Ministers claim that Henry VIII powers are necessary to alter legislation that is ‘hooked’ to EU institutions. Yet most of these ‘hooks’ are found in secondary legislation (which can be repealed without a vote in Parliament). It’s not clear why Henry VIII powers are necessary.
Even if some ‘hooks’ are contained in primary legislation, these can be removed with a tightly focused power. A broadly drafted Henry VIII power could empower the government to repeal statutes that give effect to EU norms, such as the Equalities Act 2010 or the Consumer Protection Act 1991.
In a democracy, it is for a government to justify any extension to its powers, not for sceptics to justify their opposition. The government has not made a sufficient case to justify a power with such a potentially devastating impact on individual rights.
Even without a Henry VIII clause, the GRB could grant a worrying degree of unaccountable power. If the acquis is transferred into secondary legislation, rather than primary legislation, the government will be able to repeal laws without a vote in parliament.
Transferring the bulk of the acquis into primary legislation will mean that each law can be carefully considered by parliament. This could last up to ten years, or longer. Yet, as we are reminded with almost metronomic regularity, that is what people voted for.
We were told Brexit would cause economic pain. We were told it would take a long time. We were told it would be incredibly complex. We voted for it anyway.
David Davis campaigned on ‘taking back power’ for parliament. He mustn’t now avoid parliamentary scrutiny by legislating to keep all that power for himself.
A fully referenced expansion of these arguments can be found in my full report on the Great Repeal Bill for Another Europe is Possible, and in my Global Justice Now article ‘The Great Repeal Bill: Addressing Unaccountable Power’.
Sam Fowles is a researcher at the Centre for Commercial Law Studies, Queen Mary University of London. He tweets at @SamFowles
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