EU referendum, brexit and the aftermath

Yes, as the FT notes:

Brexit: why the Great Repeal Bill will be the Great Whitehall Power Grab
David Allen Green

Voltaire once said that the Holy Roman Empire was neither Holy, nor Roman, nor an Empire (“ni saint, ni romain, ni empire“). Much the same can be said of the UK government’s Great Repeal Bill, which is to be the main legislative basis of the practical process of Brexit.

There is not yet a bill. There is no draft bill for consultation. There is not even a white paper, although there was news on Monday that one is on its way — a draft is, it seems, in circulation in Whitehall. It is about 50 pages long and will, it is said, be published when the Article 50 notification is made.

The bill is not about repeal, at least not primarily. Its primary purpose will be to place into local UK law almost the entirety of currently applicable EU law. In a wonderful paradox, the bill will, in effect, be the greatest single imposition of EU law in UK legal history. This is what “taking back control” has to mean in practice.

This exercise needs to be done because two years is not long enough to sort out all, or even many, of the statutory complications of Brexit: so the bill is a work-around to place EU law on a UK basis when the conduit of the European Communities Act 1972 can no longer be used when the EU treaties cease to apply in the UK.

That leaves the word “great”. Ministers no doubt want to evoke the “Great Reform Bill” of 1832. (There was also the “Great Education Reform Bill” of 1988, which was dubbed at the time the “Gerbill”.) Few UK statutes get called “great’, just as few British monarchs get the sobriquet “the Great”. And this is a good thing, as it keeps them in their place.

But the word may be accurate, though perhaps not in the way the government wants to pretend. To achieve what needs to be done, the government is likely to put forward a number of extraordinarily wide discretionary powers where ministers (in practice, officials) can repeal or amend whole shelves of primary and secondary legislation without much or any further legislative scrutiny.

This is not to deny the enormity of the legislative task before the government. Tens of thousands of pieces of legislation need to be considered and, if necessary, reset on a different legal basis or repealed. The Department for Exiting the European Union has identified 57 policy areas that will be affected by Brexit.

The process will be far more complicated than many realise — it will not be a mere switch of labels, from EU to UK law. Decolonisation legislative processes often meant little more than switching imperial-based law to domestic law. This is (I have been told by those who would know) what happened, for example, in Ireland after 1922 or Hong Kong after 1997. The initial step was incorporation of all the law on to a local basis, and then there was divergence over time.

Brexit will require more than this neat legislative switch. A great deal of EU law is about complex Union-wide processes: systems of mutual recognition, transfers of information and shared standards. Such elaborate legal and regulatory networks, dealing with topics from aerospace to pharmaceuticals, do not lend themselves to simple re-enactments. There is no discrete legal instrument where a search-and-replace for “EU” and “UK” will do the job. Brexit is not just about re-enacting EU law on a UK basis; it will be about the legal consequences of a number of messy procedural amputations.

The wide statutory discretions sought by the government are called “Henry VIII clauses”. This is maybe unfair on the old king: during his reign parliament developed significantly as an efficient element of the constitution. But he also benefited from the Proclamation by the Crown Act 1539, the great repeal act of its day which was for an earlier complicated disentanglement from the continent. (I think the reference to his name in this context is as much to do with his reputation for axes than any act.)

The problem with such clauses is that there are few checks and balances. Parliament is excluded, even though acts of parliament may be repealed under these clauses. Even before Brexit there was concern at these powers. The former lord chief justice Lord Judge said early last year:

“Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want? Is that how our constitutional arrangements must continue to develop? Should we allow the powers of the executive to increase and the sovereignty of Parliament to be diminished? [...] Save in a national emergency, only statute can repeal, suspend, amend or dispense with statute.”

But what would be the alternative to Henry VIII clauses if the legislative task of Brexit is to be achieved? It has taken about 45 years for the UK to legislate itself into its current position. To legally extract Britain from the EU cannot easily be done at speed, if it can be done at all. The only other way would be for parliament to do nothing else for as long as it takes. As one of the politicians most responsible for the creation of the EU single market once said in another context: there is no alternative.

This is why the Great Repeal Bill will, in truth, be the Great Whitehall Power Grab. Brexit will have to be as much about Whitehall taking power from Westminster as the UK taking back control from Brussels. And to those who complain, there is one simple question: how else can it be done?