The EU’s influence over domestic UK law drew the ridicule and ire of Leave supporters during the referendum campaign. A ban on curvy bananas and powerful vacuum cleaners, as well as stipulations on the sugar content required to make jam, were used to exemplify the micro-management style overreaching of the EU, into areas of our life which did not warrant intervention. While the EU may be responsible for some seemingly burdensome or illogical red tape, it also pioneered progressive laws and regulations in policy areas like worker’s right, food safety and consumer protections, that are broadly popular. A burning question for post-Brexit Britain is what will be done with these rules and regulations and the government's answer to this is the Great Repeal Bill, which will pave the way for changes to be made to any EU-influenced domestic laws. Far from taking back control and giving it to the people, however, the Great Repeal Bill threatens to give significant, unchecked power to ministers and civil servants to rewrite any law or regulation that has been influenced by the EU, without meaningful scrutiny from Parliament or input from the people.
The Great Repeal Bill
The government’s solution to this is the Great Repeal Bill, which is the placeholder name given to a piece of legislation that will have two main effects: it will pave the way for the repeal for the European Communities Act 1972; and lead to all EU law being absorbed into domestic law, “wherever practical.” These measures are intended to make sure UK law still makes sense after we leave the EU, for example, by removing references to EU institutions to which we will no longer report to.
In the Brexit white paper, the government said that secondary legislation enabled by the Great Repeal Bill would be used to “address deficiencies in the preserved [EU] law,” and that these changes will be “subject to parliamentary oversight.” Ministers would be empowered by the pill to amend EU-influenced laws without having to consult Parliament; so, these changes wouldn’t have to go for a debate or vote in the House of Commons to come into effect.
In principle secondary legislation enables the government to implement policy that has already been scrutinised and improved. You can never specify each and every scenario necessary in implementing policy, and sometimes there are technical changes or decisions that need to be taken to enable this to happen.
The UK’s statute book contains lots of references to the EU, and our laws will need to be changed so that they function after we leave the EU. The secondary legislation powers in the Great Repeal Bill are therefore intended to make the legislative revision process straightforward. Afterall, it would be a bad use of parliamentary time to have MPs approve the removal of every reference to every EU institution on our statute books, for example.
Legislating without checks and balances
Secondary legislation becomes problematic when it used to make significant legislative changes. In its report on delegated legislation, the Hansard Society highlighted that the use of secondary legislation has “drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail,” which has historically been its intended use.
If the emphasis is placed on lawmaking through secondary legislation, the Great Repeal Bill will set an alarming precedent for how lawmaking is done for years to come. There are very few mechanisms in place to scrutinise secondary legislation, with oversight is almost non-existent in the House of Commons, and mainly sits with the House of Lords. Committees in the House of Commons only scrutinise certain types of statutory instruments (the most common type of secondary legislation) for policy content, and these only made up 20% of SIs. The other 80% are looked at by a Joint committee but they only consider whether Statutory Instruments are legally compliant with their parent act, and not their policy content or possible effects.
Scrutiny mechanisms should enable Parliament to robustly evaluate the pros and cons of a law or legislative change, carefully analysing the impact it would have on their constituents, consumers at large, or a particular group that will affected by the changes. It is therefore troubling that even where scrutiny mechanisms exist, they are very rarely exercised in practice. The Hansard Society has argued that the way Parliament deals with this type of legislation is “unsatisfactory”, with scrutiny being “neither systematic nor consistent.” It is even more troubling that this government has form for introducing significant policy changes using this type of legislation: the abolition of university maintenance grants; the permitting of fracking in National Parks; and major changes to voter registration, were all brought in using Statutory Instruments.
What’s at stake?
The Great Repeal Bill is a gateway to empowering minister to amend or get rid of any EU-influenced law. A whole range of popular protections and rights are at risk - from clean air regulation through to food safety standards - which could be dismantled without any meaningful parliamentary scrutiny or input from the people, if the government has its way.
It is particularly concerning that once the government embarks on the process of forging new international trade deals, the protections we currently have in place as the result of the EU may become bargaining chips to be placed on the negotiating table.
For example, chlorine-washed chicken, beef from cattle implanted with growth hormones, pork sprayed with lactic acid, and unlabeled genetically modified foods are either banned or significantly restricted in the EU. Currently, no GM crops are grown commercially in the UK, but the government may be keen to relax these standards when the pressure is on from big Agriculture lobbyists looking for access to the UK market in a US-UK free trade deal. The same goes for current EU standards which ban chicken from the market that has been washed in chlorine, or pork that has been sprayed with lactic acid, both common practices in the USA.
The existing scrutiny processes for secondary legislation are weak, and from what we’ve heard of the Great Repeal Bill so far, it looks set to only further empower ministers. could cede a huge amount of power to ministers to make sweeping changes to UK law without any meaningful parliamentary scrutiny.
A democratic Brexit
In the Brexit white paper the government committed to putting “major policy issues” to Parliament, such as immigration reform. However, this is simply not satisfactory. The government must go further in opening up its legislative agenda to scrutiny, and being transparent about what EU laws and regulations should be kept or got rid of. The binary question on the referendum ballot paper only gave voters the opportunity to express an answer to the simple “in or out” question, and was not a blank cheque for the government to re-shape post-Brexit Britain in whatever laws it like; without consultation, without participation, and without deliberation.
At the moment, we are in the dark about what changes to legislation and regulation the government wants to make after we leave the EU. Regulation that is generally popular, such as clean air standards, could be silently removed from the statute books.
Pre-legislative scrutiny of the Great Repeal Bill should seek clarity and specificity as to what changes can be made using secondary legislation. The government must present a clear legislative programme which details what they are proposing to change through primary legislation, and what they want to change through secondary legislation. The government must not hand ministers a blank cheque to rewrite our laws behind closed doors, away from meaningful scrutiny by our elected representatives in the House of Commons and without the people having a say.