The government have announced they will publish a white paper on the Great Repeal Bill on Thursday 30 March, the day after article 50 is triggered. The bill will repeal the European Communities Act, which gave EU law supremacy over UK law. It will also transpose all EU law into UK law so that there isn’t a sudden legal vacuum the day after Brexit is complete. This process isn’t so simple, as many of these laws will have references to EU institutions that won’t make sense if we just ‘copy and paste’. To solve this problem the bill will contain delegated legislation powers which will allow ministers to change these laws without going through Parliament all in the name of efficiency- but what’s to stop them making more significant changes without the consent of Parliament? That is what the government is yet to tell us.
Delegated powers are meant to be used to make minor technical or administrative changes. However, increasingly their application has strayed into matters of policy - things like abolishing maintenance grants, allowing fracking in national parks and major changes to voter registration were done using delegated powers. This presents a threat to the fundamental premise of the UK’s democracy - that only Parliament has the power to make and unmake laws. Where delegated powers are necessary, robust parliamentary scrutiny is imperative to prevent the executive abuse. However Unlock Democracy has already raised concerns about the weakness of existing mechanisms for scrutiny.
So far the government has shed little light on how they intend to minimise the risks to democracy. Just a few vaguely worded statements have been made on the intended nature of the bill which have provided sparse detail on the process and procedures that will be put in place. If we are going to entrust ministers with the power to make legislative changes without consulting Parliament, we need assurances that the appropriate safeguards will be put in place. To be meaningful, here are five questions the Great Repeal Bill white paper must answer.
1. How will the government ensure delegated legislation is not used to make “significant policy changes”?
In the Brexit white paper published in February 2017, the government promised that “any significant policy changes will be underpinned by primary legislation”. What they failed to do was provide any detail on what they considered to be a “significant policy change”. There is a fine line between administration and policy and this can be highly subjective and open to interpretation. Ministers may be given powers to amend everything from our clean air standards to maternity leave entitlements. Who will determine whether the government has crossed the line by amending major policy using delegated powers? And what can the public do to hold government to account?
It is not simply not satisfactory for the government to promise not to make policy changes through delegated legislation. The delegated powers in the Great Repeal Bill need to be clearly and narrowly defined. This will prevent ministers from changing the content of the law rather than just making it functional. It will also provide a legal basis upon which to make a complaint should a minister act beyond his or her powers.
2. What happens to laws that can’t be “practically” transposed?
Towards the end of 2016, David Davis said that “the great repeal Act will convert existing European Union law into domestic law, wherever practical.” But once again, the government has failed to clarify what it means by “practical”. They have also provided no detail as to what will happen to law that it is considered impractical. This could be any law that contains a reference to a EU regulatory body for which there isn’t an obvious equivalent in the UK.
The government needs to detail what will happen to EU law that is not transposed into UK law, and set out clear criteria for how they will make these decisions. Will there be primary legislation to fill in the gaps? Will important laws be lost just because they are difficult to transpose?
3. What will be the role of the devolved parliaments and assemblies?
If the Great Repeal Bill has an effect any of the policy areas that are devolved, and it is likely that it will, then the devolved parliaments and assemblies will need to vote to give their consent to the bill. This is called a legislative consent motion.
However, there are no precedents for legislative consent motions on secondary legislation. The devolution statutes themselves contain references to the EU and so will need to be amended. Will the government make these amendments without the consent of the devolved parliaments and assemblies? Furthermore it is not clear whether the devolved parliaments and assemblies will need their own Great Repeal Bills.
4. Will Parliament, and in particular committees, have sufficient time to scrutinise the bill?
The Great Repeal Bill is of huge constitutional importance, and may afford the government powers to change primary legislation on an unprecedented scale. Parliament needs to be able to examine the powers ministers are asking for carefully, and make sure that they are appropriate. These changes are only required to be in force the day after we formally leave the EU. Therefore, there is no reason to rush through this process.
However, when David Davis was asked by the Exiting the European Union Committee in December 2016 whether he could provide assurances that the committee would have time for pre-legislative scrutiny he said: “No, I cannot...If it is in the Queen’s Speech for the next Session we will need to get it out of the way, get it done.” How will the government ensure that the exact powers in the bill - including their legal wording - will receive sufficient scrutiny? Will the white paper provide enough detail to allow for this?
5. Once the bill comes into force, how will the secondary legislation be scrutinised?
The secondary legislation resulting from the powers in the bill will need to be scrutinised, in order to prevent ministers making policy changes without Parliament noticing. Unlock Democracy has already highlighted how weak the existing scrutiny apparatus are. Parliamentary oversight of secondary legislation, particularly in the House of Commons, is poor and scrutiny procedures are archaic and convoluted.
Given the huge amount of secondary legislation that will be created by the Great Repeal Bill, what new mechanisms for scrutiny will the government commit to, if any? Will the government provide Parliament with extra resources and expertise to take on this momentous challenge? Or will these huge powers be gifted to ministers with no scrutiny?
So, what next?
These are just five of the questions we think need answering, but there are many more that could be asked. If the white paper on the Brexit negotiating position is anything to go by we can expect vaguely worded promises rather than solid detail.
However, the key difference with the Great Repeal Bill is that it is solely a domestic matter. The government can’t hide behind the excuse that providing too much information would be harmful for the national interest. If the government fails to provide comprehensive answers to the questions above, then we must question their commitment to openness, transparency, and ultimately democracy. The message from the EU referendum was ‘take back control’ - but who is really taking back control? The people or the government?