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“Great Repeal Bill” – The sovereignty of the executive
10 Apr, 2017

In principle the Bill as described in the recent White Paper makes sense as a way of implementing Brexit: repeal the European Communities Act; turn the EU acquis into UK law except where Brexit makes it necessary to do something else. Make any policy-driven changes in law later at leisure.

Of course, even then the Government cannot resist rhetorical flourishes that return to earlier Leave falsehoods. In his foreword to the white paper, David Davis says “The UK Parliament will unquestionably be sovereign again.” He seems to have forgotten the Government’s Brexit white paper which said “… Parliament has remained sovereign throughout our membership of the EU…”.

But, but, but

It will come as no surprise that the Government’s fine principles fray a little in the planned implementation.

The Bill does not, for example, provide a positive duty on the Government to convert the entire acquis into UK law.

The White Paper quotes some rather wet conclusions from the House of Lords that has resigned itself to giving the Government wide discretion to make statutory instruments.

But the more tightly the face of the Act circumscribes the power to make regulations, the easier Parliament’s job of scrutiny becomes. Moreover it will provide a fall-back route of judicial review to check whether individual regulations fall within the restrictions imposed by the Act. So we should encourage MPs to be more robust in seeking to limit the discretion of the executive on the face of the Act. Because the Government’s own ideas would allow for a weakening of control.

For example, the Government does not intend to to reproduce the Charter of Fundamental Rights in UK law because “many” of its provisions are found elsewhere. It would also drop regulatory requirements to involve EU bodies altogether rather than replicate the requirement with the appropriate UK body. Nor does the government commit itself to ensure adequate safeguards when EU powers transfer to UK Ministers. Nor does it commit itself to setting up replacement bodies by Act of Parliament.

Commencement Regulations – Repeal of the European Communities Act

If the normal commencement regulation is used – with no or limited Parliamentary intervention – then Parliament could lose control over the whole Brexit process especially if the Government decides to leave the EU with no deal. So:

  • The Repeal of the European Communities Act should not come into force unless there has been an affirmative resolution by both houses of Parliament. And
  • The debates on the affirmative resolution should not take place unless there has been a referendum on the terms of Brexit with the option to Remain.

Referendum votes were cast without knowing what Brexit meant and will be a poor quality guide to MPs of what the public think at the end of the process. But MPs will still have to have regard to the June 2016 referendum result – the major democratic event.

Since we started the process with a referendum then as a matter of political legitimacy it must be for the electorate as a whole to say whether the project should go ahead or not once the terms are known.

WHAT YOU CAN DO

Most useful would be to seek to persuade any political party of which you are a member or supporter to pick up these points on the “great repeal bill”. The most important is to use the opportunity to obtain the referendum on the terms.

LINKS

White paper Legislating for the United  Kingdom’s withdrawal from the European Union

https://www.gov.uk/government/publications/the-great-repeal-bill-white-paper/legislating-for-the-united-kingdoms-withdrawal-from-the-european-union

White paper on Brexit – The United Kingdom’s exit from, and new partnership with, the European Union – the quote on Parliament having been sovereign is at paragraph 2.1.

https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper

By Michael Romberg, a retired senior civil servant and a member of the Committee of London4Europe. You can read more from Michael on his Facebook page Campaign for the Real Referendum – on the Terms of Brexit.