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UK law existing law deriving from EU membership until such time as decisions can be made as which provisions should be repealed, amended or retained.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.