Constitution update
Constitutional law update: The Great Repeal Bill and the government’s thinking
Neil Parpworth examines the Great Repeal Bill white paper, which sets out the government’s proposals for ‘ensuring a functioning statute book once [the UK has] left the EU’.
About the author
Neil Parpworth is principal lecturer in law at Leicester De Montfort Law School
O ne day after the Prime Minister’s letter was handed to Donald Tusk, the President of the Council of Europe, thereby triggering article 50 of the Treaty on the European Union, the white paper on what has widely, if erroneously, become known as the ‘Great Repeal Bill’ was published.1
The key features of Legislating for the United Kingdom’s withdrawal from the European Union will be discussed below since the government regards the white paper as representing ‘an essential step along the way’ to delivering a ‘smooth and orderly Brexit’ (foreword).
The paper opens with the observation that the European Communities Act (ECA) 1972 is ‘the principal piece of legislation that gives effect to EU law in the UK and the legislation which makes EU law supreme over UK law’ (para 1.1). Under the ECA, directly applicable EU regulations have taken effect in UK law without the need for implementing legislation. Moreover, ministers have, on countless occasions, exercised delegated powers to incorporate other EU legal instruments, principally Directives, into UK law. The repeal of the ECA, which will be one of the three main purposes of the bill, will therefore remove the basis for EU law to take effect in the UK. This means that in the absence of a contingency, the UK statute book would contain ‘significant gaps’ or ‘large holes’ (para 1.13).
Accordingly, the white paper makes clear that the entire body of EU legislation will be converted into UK law on the day of departure in order to prevent such gaps appearing. Thereafter, the UK parliament and the devolved legislatures will be ‘able to decide which elements of that law to keep, amend or repeal’ (para 1.12).
If it is the case, as David Davis Secretary of State for Exiting the European Union contends, that sovereignty lay at the heart of the referendum result, it is something of an irony that taking back control will initially involve the wholesale conversion of EU law into UK law. From a practical standpoint, however, this is necessary not least because there is insufficient time for all of the relevant decisions to be made in advance of the UK leaving the EU.
The classic Diceyan notion of sovereignty provides that parliament can do anything other than bind its successors. Accordingly, where there is a conflict between statutory provisions, those in the later Act will impliedly repeal the earlier provisions to the extent of the inconsistency. The white paper recognises that there may be conflict, in the future, between EU-derived laws, ie, EU law which has been converted into domestic law under the Great Repeal Bill, and Acts passed following the UK’s withdrawal from the EU. Although the government’s ‘proposed approach’ is for the latter to take precedence, this is in truth nothing more than the long-recognised doctrine of implied repeal being applied in the present context.
One of the claims of the ‘Leave’ campaign was that exiting the EU would free the UK from the shackles of the jurisdiction of the Court of Justice of the European Union (CJEU). It is noteworthy, therefore, that for as long as EU-derived law remains on the statute book, ‘the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU’ (para 2.14).
Since the underlying purpose is to achieve consistency and legal certainty, the bill will go further than Human Rights Act 1998 s2 (interpretation of convention rights). Thus, while UK courts are required to take into account relevant Strasbourg jurisprudence in human rights cases, under the bill CJEU decisions are to be accorded the same binding status as Supreme Court decisions.
EU laws that are not directly applicable, ie, which do not take effect in a member state automatically, can only be implemented by domestic legislation. In the UK, while this has sometimes taken the form of primary legislation, in the vast majority of cases EU legal instruments have been implemented by delegated legislation made under the authority of ECA s2(2) or some other Act. When the ECA is repealed, the legal basis for a considerable amount of domestic legislation will, therefore, disappear, and so will the laws themselves. This is why the government proposes to convert all EU-derived law into UK law in the Great Repeal Bill.
It also proposes to confer powers on ministers to make delegated legislation, to amend or repeal the EU-derived law, where it is considered appropriate to do so. Powers to amend primary legislation by the making of secondary legislation are sometimes referred to as ‘Henry VIII powers’ after the Tudor monarch who sought to rule by royal proclamation. These powers are controversial in that they are contrary to the general principle that Acts can only be amended or repealed by later Acts. The government seeks to justify their use in the present context on the basis that ‘a very significant proportion of EUderived law’ contains provisions which will not function unless it is amended following conversion (para 3.5). The intention is that UK ministers and ministers in the devolved governments will have these delegated powers conferred on them as soon as the Great Repeal Bill receives royal assent, so that they are able to set about their task in advance of the UK’s withdrawal.
In recognition of the concerns about the potentially wide-ranging scope and longevity of these powers, the white paper states that they are not to be exercisable to make policy changes which do not relate to perceived deficiencies in preserved EU-derived law, and that they will be time-limited. By implication, however, they can be used to make policy changes which do relate to perceived deficiencies in EU-derived law. Also, while a commitment to the principle of time-limited powers is a good thing, it will be valueless if the specified period is too long.
The white paper refers to the ‘procedures in the Bill for making and approving the secondary legislation’ as if it were intended to establish a new procedure which would apply specifically in the present context (para 3.20). While this was something which the House of Lords Constitution Committee called for, what is actually envisaged is the utilisation of the existing negative and affirmative procedures.2 Parliamentarians will, therefore, be called on to consider legislation made under both procedures, since the white paper regards the negative procedure as being appropriate where EU law is being mechanically converted to UK law, whereas the affirmative procedure ‘may be appropriate for the more substantive changes’ (para 3.22).
It is noteworthy, however, that the white paper claims to be ‘the beginning of a discussion between Government and Parliament’ on this matter (para 3.23). This is a surprising statement. Given the enormity of the task which lies ahead, and the central role to be played by delegated legislating in fulfilling it, the matter ought really to be decided already. If the government is genuinely open-minded, perhaps it may be persuaded that where there is any doubt as to which side of the line a measure falls, the affirmative procedure should be followed. The administration might also be encouraged to provide for the use of the superaÿrmative procedure in some instances.
However, since it is currently estimated that between 800 and 1,000 Statutory Instruments will need to be made to correct the law, the negative procedure has the obvious attraction of being less heavy on parliamentary time, which will be at a premium in the years leading up to and beyond the UK’s withdrawal. Where the procedure is employed, however, there is a danger that parliamentary scrutiny will be sacrificed in the interests of expediency.
There are quite a lot of blank pages in the white paper, which is regrettable given that on some issues, such as the impact of withdrawal on the devolution settlements, the detail is very thin (paras 4.1– 4.6). Read as a whole, the document only partly allays concerns that the government is not really prepared for Brexit.
Also, the bill is patently misnamed. It is not really a ‘Great Repeal’ measure at all; instead, it might be described more accurately as the ‘Great Conversion Bill’ or the ‘Great Retention Bill'. Moreover, while leaving the EU will remove a limit on the legislative power of parliament, it will also see a significant extension of the executive’s powers to make law. Parliament will, therefore, need to be vigilant in discharging whatever scrutiny role it has. It may not be too long before the courts are required to rule on the validity of delegated legislation made under the authority of whatever the Great Repeal Bill is ultimately called.
- Available at: http://tinyurl.com/mh6hyoo
- The ‘Great Repeal Bill’ and delegated powers, 9th report of session 2016–17, HL Paper 123, available at: http://tinyurl.com/zqapde5