21 October 2016

LSE: The Great ‘Repeal’ Act will leave Parliament sidelined and disempowered

The author argues that the Great ‘Repeal’ Act will collapse the distinction between EU and national law, creating powers never expressly granted by Parliament. It will probably also enable the government to amend primary legislation without a parliamentary vote.

The government has pledged to introduce the Great Repeal Bill in 2017. The Bill’s purposes are (i) to repeal the European Communities Act 1972 and (ii) to ensure that EU law that has not already been implemented in national law remains in force from the date of withdrawal. For the new Prime Minister Theresa May, the key word is ‘repeal’: the repeal of the ECA 1972 entails in turn the freedom of Parliament ‘to amend, repeal and improve any law it chooses’ after the Bill becomes law. But how far does that power extend?

The Great Repeal Bill converts all existing EU law into British law. [...]Ironically, the vast majority of EU law will therefore remain in force well after Brexit. It would be far more apt to refer to this measure as the ‘Great Retention Bill’.

True, Parliament will remain ‘free’ to repeal EU law. But which EU law would it wish to repeal? [...]

Brexiters should spell it out honestly: the future is not sovereignty

The picture gets much worse if you’re a committed Brexiteer. Upon coming into law, the Great ‘Repeal’ Act will immediately collapse the distinction between EU law and national law. The impact on the domestic constitution will be immeasurable. [...]

The purpose of the Great Repeal Bill is to restore sovereignty to Parliament. In fact, it will have three rather different effects. First, it will submerge the entire UK legal system within EU law. Second, even more than the ECA 1972 and the Human Rights Act 1998, the Great Repeal Act will subject the entire UK legal system to enhanced judicial powers. Third, it will empower government, not just Parliament, to alter that newly incorporated EU law.

Better still, then, it should be called the ‘Great Empowerment Act’. The Bill will probably include a ‘Henry VIII’ clause, authorising the government, rather than Parliament, to use subordinate legislation to amend or repeal primary legislation. Such clauses are admittedly common in domestic legislation. They often relate to technical detail, and are for the most part uncontroversial. However, EU law does not just deal with technicalities. It covers social policy, employment law, and fundamental rights. It permeates every level of state and society, including national constitutional law. Generally speaking, the use of Henry VIII clauses already creates huge scope for executive abuse of power. In the context of EU law, their use will be, as Sionaidh Douglas-Scott recently noted, ‘profoundly unparliamentary and undemocratic’, and ‘particularly repugnant’.

Brexiters should spell it out honestly: the future is not sovereignty. It is subjugation to judicial decisions and to executive powers. While it promises democracy, all Brexit will deliver will be a lawyers’, technocrats’, and bureaucrats’ paradise operating beyond the reach of Parliament. That looks very much like the world from which they kept insisting they were liberating us.

Two cases demonstrate the point – one in London and one in Northern Ireland. The Northern Irish case deals with the impact of EU withdrawal on the Good Friday agreement and on the peace process. This is the case that should be grabbing media attention. Are memories of the Troubles already lost in the mists of time? Instead, coverage has focused on the London case, which centres on the procedural question as to who gets to notify the European Council under Article 50 TEU. The government insists that it alone has the power of notification. Formally, EU treaties are part of foreign relations, which fall within the domain of the executive’s prerogative power. The claimants, however, note the gravity of withdrawing from the EU and its pervasive impact on domestic law. That, they argue, is why Parliament must debate and vote on the issue.

[...]This is a further illustration that Parliament has not taken back control. Instead, the sovereign body of the UK has ceded power to three other branches – first, to the undemocratic and unparliamentary prerogative powers of government; second, to a national referendum it knows to be purely advisory; third, to a court of law. This is parliamentary submissiveness, not sovereignty. [...]

Brexit has indeed resulted in a new constitutional settlement. The Great Repeal Bill and the Article 50 litigation illustrate how the UK constitution is being transformed, more by accident than by design. Leavers were promised ‘sovereignty’ and ‘control’. But Parliament now finds itself sidelined by the government, in hock to an advisory referendum, and supinely awaiting a judicial decision it had the power to avert. [...]

Full blog post on LSE Brexit

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