The next step in Britain’s departure from the EU is the UK government’s white paper on what it is calling the Great Repeal Bill. This is the vehicle through which the UK will extricate itself from EU laws and create its own. But in doing so, the government is attempting to hand itself potentially very considerable powers to make new laws without full parliamentary scrutiny.
The bill, if and when adopted, will remove from the statute book the European Communities Act, which is the main act of parliament that gives effect to EU membership in UK law.
However, it will also keep in force most EU law in the UK, converting it into UK law in the process (I call this body of law “ex-EU law”). Further changes to those laws will then be made in the UK – either by the devolved parliaments or executives (in Scotland, Wales and Northern Ireland), the Westminster parliament, or the UK government executive. The white paper is vague about exactly what powers will be exercised by the devolved administrations, and this is likely to be a highly contested issue in practice.
But the other key debate will be, when powers are exercised by Westminster, which changes to ex-EU law must be made by parliament and which changes can be made by the government as a delegated power. This distinction is important. An act of parliament allows for extensive public discussion and parliamentary scrutiny. An act of the executive (usually in the form of “statutory instruments”), on the other hand, is subject to only limited public or parliamentary involvement. There is far less time for discussion, and no prospect of tabling amendments in parliament.
Some of these delegated powers in the Great Repeal Bill will be uncontroversial. For instance, once the UK is no longer a member of the EU, it will not have to abide by the rules of certain EU institutions, so references to these can be removed from the law books with relative ease. Most of these references will simply be redundant, and there are limited domestic policy choices to be made when replacing them.
However, there is a further category of changes to EU law which will be more substantive. The white paper gives a non-exhaustive list of cases where the government thinks it should have delegated powers: where a policy might change in light of the Brexit talks with the EU; where a policy changes as a direct consequence of leaving the EU; and where the level of detail is “not appropriate” for an act of parliament.
In other words, it wants to award itself the power to change the law under a fairly broad and somewhat vague set of circumstances without the full parliamentary process. Within the scope of these powers, the UK will in effect be governed by the executive, not parliament.
It argues that the powers must be widely defined and must apply not only to ex-EU law converted into EU law, but also acts of parliament linked to EU membership. This might, for example, include the extradition act (to the extent it covers the European arrest warrant).
The white paper seeks to emphasise the very technical changes to ex-EU laws that the government might wish to make with these powers but that is frankly misleading. The broad discretionary powers it seeks could be used to make very consequential changes to policies. The potential is nearly limitless. These powers could, for instance, be used to adopt every detail of future policies on agriculture, fisheries, trade with non-EU countries or extradition to the EU without full parliamentary scrutiny or public discussion.
The Brexit referendum was fought on the basis that the UK would “take back control” for the UK’s parliament and devolved legislatures. But the blueprint in this white paper suggests that for many issues, control will actually be exercised by the government. It remains to be seen whether parliament is willing to give it a blank cheque.