The Great Repeal Bill

Much attention is presently focused on the European Union (Notification of Withdrawal) Bill as it makes its way through Parliament.  However, the most substantial work for Parliament will come later.  The Government proposes to introduce a ‘Great Repeal Bill’ next session to repeal the European Communities Act 1972 and at the same time maintain in UK law existing law deriving from EU membership until such time as decisions can be made as which provisions should be repealed, amended or retained.  The Great Repeal Bill (as the foregoing indicates, the title is something of a misnomer) will itself create great challenges for Parliament, as will dealing with the subsequent legislation – primary or delegated – that is introduced to remove or amend measures kept in place by the measure.

The nature of the problems facing Parliament is addressed in the latest report of the House of Lords Constitution Committee.  The report is, in my view, one of the most important reports published by the committee in its sixteen-year existence.  It clarifies the nature of the problems:

First, there is a major and unique challenge in converting the body of existing EU law into UK law, given that ‘EU law’ derives from a range of sources – UK primary legislation, secondary legislation, EU regulations (having direct effect and therefore not embodied in any UK Act), judgments by the Court of Justice of the European Union and by UK courts, and rulings by regulatory agencies.   The Bill will need to capture EU law at a particular moment, in itself problematic given that EU law is constantly evolving.

Second, there is the challenge of determining how to confer on Government relatively wide delegated powers to convert EU law into UK law, while making sure the powers cannot be used to implement new policies favoured by Government.  The Committee makes recommendations as to how to ensure that Government does not use secondary legislation to go beyond what is necessary to adapt EU law to fit UK domestic law and to implement the results of the UK’s negotiations with the EU.

Third, there is the challenge of scrutinising measures to remove or amend law introduced subsequent to and under the provisions of the Great Repeal Act.  This is going to be a major, continuing and time-consuming exercise, essentially dominating the parliamentary timetable for some years.

For dealing with secondary legislation laid under the provisions of the Act, the Committee makes a number of recommendations, including a new or enhanced scrutiny process and a committee to examine the Government’s recommendation as to the appropriate level of parliamentary scrutiny.  The Committee is alert to the resource implications of undertaking scrutiny of what is likely to be a massive volume of secondary legislation.  It also notes the need for the UK Government to make clear what it sees as the role of the devolved institutions in the process of domesticating EU law.

The report is in my view invaluable in alerting Parliament (and Government) to the complexity and scale of the problem and helps provide some framework for addressing it.  It clarifies the nature of the problem in time for Parliament to put in place mechanisms for dealing with what is an unprecedented situation.   The situation we face is both constitutionally and politically challenging.  Time is of the essence.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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17 Responses to The Great Repeal Bill

  1. Hugo Miller says:

    When we leave (IF we leave), EU Regulations will immediately cease to apply. EU Directives, however, will remain in force until repealed, since they are activated by domestic legislation. Some years ago, in an idle moment, I calculated that if we got rid of ten of these things every working day, it would take us forty years to be free of them. To be fair, I might have been lumping together Regulations and Directives in this calculation, but we still have a lot of work ahead of us.

    • Lord Norton says:

      As the report notes (para. 18), directly effective EU law is likely to be covered by a general provision in the GRA that it has continuing effect in UK law as it stood at the time of the UK’s exit, though it may also confer a power to transpose individual elements, such as particular regulations, through statutory instruments.

    • David Simpson says:

      When we leave, if we leave lol !

    • I think your analysis regarding the directives is flawed. Directives are made part of the law of the constituent jurisdictions of the UK by delegated legislation made under the power of the 1972 Act. The repeal of the 1972 Act will – with no saving – mean that the legal basis for the directive falls. I tried to explain the principles in a brief medium post. https://medium.com/@Scott_Wortley/what-happens-to-statutory-instruments-made-under-the-european-communities-act-1972-if-the-1972-act-55ddcd8eb087#.evtc3oppk It is therefore crucial to have appropriate saving (and translation) provisions in the Great Saving of EU law bill to preserve the current position if that is the government objective – although the ideal position would be an audit to assess each provision individually given the number of directives that are dependent on giving power to bodies within the EU, whose regulatory (or other) roles would become otiose.

      • Hugo Miller says:

        That is interesting. Are you saying the whole Statutory Instrument process of making law, which has become so widespread today, was ‘invented’ by the 1972 Act? I wonder how many people are aware just how many of our laws are made in this un-democratic manner, with little or no involvement of the people they elected to Parliament?

  2. crhill764 says:

    Reblogged this on batsinthebelfrey and commented:
    This article bty Lord Norton is exactly what is needed by anyone who has been wondering how Parliament is going to cope with the incorporation of EU law into British law.

  3. tizres says:

    May I offer some alt-suggestions (one or two need a touch of fleshing out):

    1. Crowdsourcing
    2. Wikipedians – banning Daily Mail citations should grant them at at least an interview.
    3. Combine (1) and (2) above and leak it to Mr Assange (my personal favourite).
    4. Students – the bright ones, obvs.
    5. Rework your caption competitions – perhaps an image of an Act, best conversion wins?
    6. Sell peerages for research.

    I reckon that, with a bit of imagination and a soupçon of goodwill, one of them could work.

  4. Paul Lowe says:

    Great blog and an excellent analysis. Sadly, ofif this whole farce has to play out, I can’t think of a worse team to carry us through it than Mad May and the Three Brexiteers.

  5. Croft says:

    LN,

    With the scale of the task I’ve been pleasantly surprised by the way D.Davis has conducted his role and his willingness to engage with parliament and the committees. However given, I think you won’t disagree with me, that the ECA is essentially a turbo charged Henry VIII clause; do you like me find his statements that he doesn’t envisage much use of a similar provision in the GRB surprising. I find it inconceivable that the complexity can be dealt with (in a timely manner) via primary legislation or that we won’t find (or the courts won’t hurl spanners into the works) many problems as holes are found in the transition process. Primary/secondary legislation will just not be quick enough to deal with these issues….

    I think realistically ministers are going to have to be given some sun-setted backstop powers to make immediate amendments to legislation – even if they then have to go to parliament in some time limited fashion to get them retrospectively approved.

  6. Croft says:

    Some other thoughts having reread the report:

    “it will be difficult tightly to define, in advance, the limits of the delegated powers granted under the Bill without potentially hobbling the Government’s ability to adapt EU law…following Brexit.”

    Surely a bigger problem not really touched upon in the report is how you can place limits on the government without opening the door to vexatious litigation. It’s easy to see how glacial judicial review could grind decision making to a halt.

    Taking the terms of the report (albeit not bill clauses) “so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and…so far as necessary to implement the result of the UK’s
    negotiations with the EU.” clearly are vague enough as to be capable of almost any construction the courts wish to find!

    “However, if instead EU law is domesticated by the ‘Great Repeal Bill’ via a general provision (see paragraph 18) it will presumably have the same hierarchical constitutional status as the Bill itself”

    Not sure I buy that argument. The courts invented the constitutional statue for the ECA. I’m not sure we can or should assume that the GRB should be a constitutional statue or that legislation brought or preserved by it should have a special status. Special statues are a mischief of the courts and not constitutionally desirable.

    “Parliament may wish to consider whether, as a way of providing impetus to this project, they wish to include sunset powers that will repeal domesticated EU law after a set period of time,
    necessitating that it be re-enacted as UK legislation rather than imply being incorporated in UK law by operation of the ‘Great Repeal Bill’”

    Did the committee consider how Ireland dealt with UK law? They only recently went through their entire legal system and removed/relegislated for all UK derived law.

    In relation to devolution: Are we not gong to need some general provision (similar to that which related to obeying EU law) to require the devolved administrations to implement any international treaty in general but also any harmonised domestic legislation necessary for it to function. I don’t see LCMs is a way to go as the SNP will doubtless be deliberately obstructive.

  7. Mr W says:

    I am curious how this will affect Scot’s Law which, as I understand it, must comply with EU law. Surely this means that the very nature of the devolution settlement will be changed as a result.

  8. Isabel Turner says:

    Is there a precedent for a second Referendum on the same substantial matter that could affect a whole political/economic/social life of a proud people? If such second referendum on the same matter has ever taken place. where was it and what consequences did it produce? I have been studying Constitutional Law for many years and cannot remember one . Isabel Turner Interational Law Consultant

    • Hugo Miller says:

      Denmark voted against the Maastricht Treaty. They were told to go & vote again and get it right this time, which they obligingly did. Exactly the same thing happened to Ireland when they voted against Nice. The French and the Dutch voted against The Constitution For Europe. Certainly in this latter case, and probably in the previous two, this legally killed the treaty stone dead. But like vampires (or is it zombies?) these treaties just don’t stay dead. The French and the Dutch votes were simply ignored. By that time, Mr Blair had promised us a referendum on the Constitution regardless of what happened in other countries, but this promise was quietly forgotten and the whole referendum thing was treated as though it had never happened. Then, would you believe, the Irish suffered a ‘deja vu’ all over again, with the Lisbon Treaty (as the Constitution had by then been re-named).
      Every vote against the EU is treated as provisional, and every ‘yes’ vote is final. What makes people think ours will be any different?

  9. tizres says:

    AOB: today’s Daily Politics referred to “new research” on attitudes towards Scottish nationalism: http://natcen.ac.uk/our-research/research/scottish-social-attitudes/

    Is research the new polling?

  10. maude elwes says:

    As I read through this thread and much from outside here I get angrier by the minute.

    What does it take for you people in that Parliament to understand the word ‘leave.’ Get away from means just that. Escape.

    A vote for leave was taken by the electorate to rid us of ‘EU legislation.’ In general, all laws emanating from that union are a garotte. Or, are you all trying to pretend a leave whilst really remaining choked by the ever increasing talk of strings. We were led into believing our courts would be backing UK Justice, not EU strangulation. That is why leave won the day.

    Our Parliament appears to be filled with puppets being strung along by the same people who claim winning elections in Austria and Holland was a vote against that dreaded word ‘populism.’. And they do so whilst they losing more and more seats. After watching the debating Lords on this issue all I can feel is a tremendous fear of the demented.

    And Mrs May said recently, ‘politics is not a game.’

    It’s corney

    • Hugo Miller says:

      “Leave” to me means simply ceasing to be bound by the Treaties. The next couple of years are going to be very interesting. In a sane world, all parties would recognise that it is in everybody’s mutual interest to have tariff-free trade in both directions. But the EU cannot allow us to have a better deal while outside the EU than we had while we were on the inside. So they must seek to ‘punish’ us for our stupidity in seeking to go it alone.
      In my view, whatever course the negotiations take, this will ultimately turn into a clash between Britain and the European Court of Justice. The ECJ will seek to impose sanctions of some sort against us, and we will (I hope) just say that we no longer recognise their authority.
      I was interested to observe, in a BBC programme on ‘Brexit’ last night, the reactions of members of the public to the threat from Brussels to make us pay them £50 billion in a divorce settlement. One lady, interviewed in an anonymous high street somewhere, said “They should never have let us have a referendum. We are not educated enough to understand the complex issues involved.” And this is the nation that once stood defiant and alone against Hitler?

  11. maude elwes says:

    Facts and internal knowledge before joining a club out to take over your financial economics surely has to be the first requirement of those who are running the governing body of any country.

    As a side line to that would be politicians knowing where they are coming from and where they are going and what all of that entails.

    Clegg and the side kicks funding his messianic agenda must do more than allow him to make silly speeches on what his wishes are. The UK has been in total decline since 1973. How is his idiotic face allowed air time by an institution claimed to be informing the population, at their own cost, on world issues sworn to be important to our well being? Why is the BBC not investigating the obvious in this matter?

    The Brussels Business

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