The Brexit legislation you need to know about

What is the Repeal Bill and why does it matter?

Today in the Queen’s Speech the government will set out their legislative agenda for the next two years, as they've cancelled next year's Queen's Speech to run an extended parliamentary term.

One piece of legislation that is expected is the Repeal Bill. This proposed law will repeal the European Communities Act 1972 which sets out our relationship with the EU and allows our laws to be updated in line with EU rules. This legislation will do two broad jobs:

1. Transpose existing EU rules into UK law so that there isn’t a sudden legal vacuum on the day after Brexit is complete.

2. Implement the withdrawal deal.

How will this be done?

In normal circumstances only Parliament can change the law. As the result of the enormous task that will be editing thousands of laws, the bill proposes giving ministers special powers to make these changes without having to go through Parliament.

A lot of EU laws can’t just be copied and pasted into UK law. For example, some of them will contain references to EU institutions that may not have jurisdiction in the UK after Brexit.

Given the huge task at hand, these special powers are necessary to a degree - it simply wouldn't be a practical use of Parliament's time to approve what could be thousands of minor changes to UK laws to remove technical references to the EU.

What's worrying is that this legislation would involve handing over enormous power to ministers that under current parliamentary processes, are not subject to robust scrutiny. The bill will give unprecedented numbers of delegated powers to ministers and it is important that there is a strong scrutiny process to oversee how these powers are used. Without bolstered scrutiny mechanisms in place, ministers would be left to make potentially substantial changes to laws covering workers' rights, regulations on what can be put in baby food, or clean air standards, on their own and without parliamentary scrutiny or approval.

The House of Commons library estimates that the large scale of the bill - changing so many different policy areas, as well as our constitution - could require a thousand statutory instruments (secondary legislation issued by ministers) to be enacted in a very short timeframe.

This shouldn’t be done without proper safeguards like:

  • Clear definitions of what the powers can and can’t be used for

  • An effective system for Parliament to scrutinise the changes to laws that are made

  • A chance for Parliament to veto any changes

What are the problems?

The government is proposing to give significant powers to ministers. But as our new report, ‘A Democratic Brexit’ highlights, ministers will be handed the power to change laws behind closed doors with insufficient parliamentary scrutiny to ensure they don’t make substantive changes - like removing clear air standards, for example.

The government have failed to tell us how they will limit the powers in the bill to stop them being used for purposes other than making EU law function in the UK, with their white paper being thin on whether such crucially important limitations will be put in place. 

The existing system for scrutinising legislative changes made by ministers is poor, and many MPs don’t understand how it works - 80% of these changes become law without Parliament being able to vote on them. Even when Parliament signs a petition to try and veto changes, they are are often not given the chance to do so.

At the moment there is nothing stopping ministers from using these powers to getting rid of laws they don’t like. Everything from our environmental protections to workers' rights could be at risk.

What needs to change?

A hung parliament has implications for Brexit, and the government must recalibrate its approach given that a majority of the electorate has not endorsed its plan. When it comes to bolstering scrutiny around the Repeal Bill, this is where the government can make a start: 

1. Transparency - There should be substantial pre-legislative scrutiny of the Repeal Bill, and the government should clearly set out its legislative agenda for Brexit rather than trying to sneak changes through the back door.

 2. Restricting ministers’ powers - The delegated powers enabled by the bill should be narrowly defined and where possible subject to sunset clauses.

3. Cross-party, bicameral scrutiny - Committees similar to those which already exist in the House of Lords should be established in the House of Commons to sift through delegated legislation and determine the appropriate level of scrutiny.

Jargon buster

Some of the conversations around the Repeal Bill can be quite technical and confusing, but we think it’s an important issue that everyone should care about. Check out our jargon buster to help you make sense of it all.

  • Primary legislation - a law that has been passed by parliament, an Act of Parliament.
  • Secondary legislation/ Delegated legislation - changes to the law made by government using powers given to it in an Act of Parliament. The two terms can be used interchangeably.
  • Henry VIII powers  - powers to make secondary legislation that changes primary legislation.
  • Statutory Instrument - The most common type of secondary legislation.
  • Sunset clauses - a clause that specifies a date on which parts of, or all of, the law stops applying. This term has been used in relation to putting a time limit on the powers for ministers in the Great Repeal Bill but also to EU laws themselves.

We've recently published a new report, 'A Democratic Brexit: Avoiding Constitutional Crisis in Brexit Britain.' To keep up to date with our Democratic Brexit project, sign up to our mailing list