The not-very-great repeal bill: a power grab by Theresa May

3 Jun 2017

The white paper in March outlined the "Great Repeal Bill" that was to have gone to parliament in May or June, and will now be high on Theresa May's agenda if the Tories for win the general election.

On the face of it the idea is simple: repeal the 1972 European Communities Act, which provided a mechanism to bring into UK law things emerging from the EU, and shift all EU-derived law into British law. British and EU law have been so intertwined for so long that simply repealing everything would create some big holes, so this could be seen as a pragmatic solution. It means that on the day after leaving the EU, UK law would be in the same place that it was the day before.

But things are not quite what they seem.

Repealing the European Communities Act is meaningless: it would cease to apply soon as we left the EU.

For those who claim Brexit is about "taking back control", this is the opposite: it explicitly writes lots of EU law into British law, at a stroke causing Brussels to create British law as never before.

What's rather sharper is how the judgements of the European Court of Justice will apply. At the very least, case law from the ECJ has a bearing on how EU-derived law has been shaped, and therefore on what is being brought into British law. To be faithful to the process of writing things into British law, British courts would still need to take note of rulings from the ECJ. If it exactly transposes things into British law, then decisions of the ECJ would continue to have full force on the UK.

Even if that is softened if we are to continue trading with the single market we will need to continue complying with EU law, interpreted by the ECJ (though without the ability to alter it).

A power grab from Theresa May

If the intention was for this to change nothing, then we'd carry on as before, with Brexit making very little difference. Disentangling British and EU is a big task, and too big for parliament to do with proper scrutiny at any speed, so the proposal is for parliament to delegate the power for much of this to the government. That actually gives huge power to No.10.

In the best-case scenario, these powers will be used wisely to sort out irregularities.

In reality, conferring huge powers on the Prime Minister and hoping she will use them wisely is rather optimistic. At the very least, some mechanism of checks and balances is needed. In any case, moving powers from Parliament to the prime minister is the opposite of "asserting parliamentary sovereignty" or "taking back control".

There is probably no alternative to this bill if Brexit is to happen as the Tories propose. It makes the leaving of the EU the biggest assault on British parliamentary democracy in a very long time. The name "great repeal bill" sounds heroic - like the Great Reform Act, but it is the opposite. Some of those who voted for Brexit will be taken in. Others should be protesting, and loudly.

The EU works hard to protect democracy in its own processes and in the member states. It is horrifying that, if we do actually leave, the first thing that will happen is a giant sidelining of parliament: that's a giant assault on our democracy.

 

 

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