After several months of gestation — it was first trailed in Theresa May’s speech to the Conservative Party Conference last October — the Government today finally put some flesh on the bones of its spectacularly misleadingly dubbed ‘Great Repeal Bill’. Or at least, that is what the Government appears to think it has done by publishing its White Paper. In reality, its thinking — or the thinking revealed in this White Paper, at any rate — remains alarmingly sparse, and gives rise to at least as many questions as it answers.

I do not in this post seek to provide any comprehensive summary of the White Paper or of the legal and constitutional issues that form the essential backdrop to it. (Some of those points are covered in this Twitter thread.) It suffices to say, for present purposes, that the need for the Great Repeal Bill is hard to dispute. Given that it is imperative to avoid a sharp legal rupture on Brexit Day, substantial parts of EU law will need to be retained post-Brexit, and it is the preservation, far from the repeal, of EU law that the Bill will set out to accomplish. This is clear from the three-pronged strategy — ‘repeal’, ‘convert’, ‘correct’ — which, the White Paper confirms, the Bill will pursue:

  • Repeal — The European Communities Act 1972 (‘ECA’), which gives domestic effect to directly applicable EU law and provides a legal basis for the domestication of other EU law, will be repealed.
  • Convert — Directly applicable EU law will be converted into domestic law, while EU law already domesticated under powers granted by the ECA will be preserved, the ECA’s repeal notwithstanding. This will give rise to a body of ‘EU-derived law’ that will, from Brexit Day, exist in the UK solely as UK law.
  • Correct — The Great Repeal Bill will equip UK Ministers and devolved Ministers with delegated powers to ‘correct’ EU-derived domestic law and other relevant domestic law in order to ensure that EU-derived domestic law is workable in the UK post-Brexit.

In this post, I draw attention to three key areas of constitutional law and politics that are engaged by the White Paper, arguing that the White Paper suggests that the Government’s thinking is significantly underdeveloped or otherwise highly problematic.

Law

The White Paper, to be fair, does clarify some issues. For instance, we are told that the case law of the Court of Justice of the European Union (‘CJEU’) will remain relevant post-Brexit. Indeed, for as long as EU-derived law remains on the statute book, any question about its meaning will have to be resolved by UK courts ‘with reference to’ the body case law of the CJEU that exists on Brexit Day. And that does not just mean that UK courts will have to take account of CJEU jurisprudence (as, for instance, they have to take account of the case law of the European Court of Human Rights under section 2 of the Human Rights Act 1998). Rather, it means that pre-Brexit CJEU case law will be binding in the UK and will, in terms of its precedential status, be of equal standing to the case law of the UK Supreme Court.

The White Paper also clarifies what the domestic hierarchical status of EU legislation will be post-Brexit. It confirms that the Great Repeal Bill ‘will end the general supremacy of EU law’. However, the use of the word ‘general’ is significant here. EU-derived law will continue to enjoy supremacy over all UK law — including Acts of the UK Parliament — that existed pre-Brexit. The implication, then, is that all EU-derived law will have the status of an Act of the UK Parliament enacted on Brexit Day. As a result, while post-Brexit Acts of Parliament will prevail over EU-derived law, EU-derived law will take priority over pre-Brexit domestic law.

However, while the White Paper provides a welcome modicum of clarity in relation to these questions of precedent and hierarchical status, it is far less clear when it comes to the legal scope of the powers that it will confer upon Ministers — the conferral of such powers, the Bill’s moniker notwithstanding, being the Bill’s pre-eminent purpose. Yet the way in which those powers are framed will be axiomatic. We are told that delegated powers will be granted ‘to correct the statute book’ where that is ‘necessary’ in order to ‘rectify problems occurring as a consequence of leaving the EU’. That might suggest very modest powers. But the nature of the ‘problems’ that the Government thinks should be remediable by exercise of these powers (rather than via secondary legislation) are very broad in scope. They include:

  • Dealing with matters — of which there is likely to be a huge number — that ‘cannot be known or may be liable to change at the point when the primary legislation is being passed because the Government needs to allow for progress of negotiations’
  • Making ‘adjustments to policy that are directly consequential on our exiting the EU’ — of which there will also be an enormous number
  • Providing ‘a level of detail not thought appropriate for primary legislation’

In its recent report on the likely constitutional implications of the Great Repeal Bill, the House of Lords Constitution Committee insisted that a distinction must be drawn between mechanically converting EU into domestic law and legislating on matters that involve the making of policy choices. But while acknowledging the Committee’s remarks, the Government does not clearly signal that that distinction will be reflected in the Bill. For instance, it makes it clear that the delegated powers will:

  • Extend over the ‘full body of EU-derived law’
  • Bite upon both secondary legislation and primary legislation, meaning that so-called ‘Henry VIII’ powers will be conferred
  • Include ‘the power to transfer to UK bodies or ministers powers that are contained in EU-derived law and which are currently exercised by EU bodies’ — steps that may entail the making of substantial allied policy choices
  • Be ‘wide in terms of the legislation to which it can be used to make changes’

Indeed, that the power will extend to making potentially very substantial policy choices is implicitly clear when the Government says that the power ‘will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU’. The plain implication is that Ministers will be authorised to make policy changes when they are designed to deal with legal deficiencies arising from Brexit — a category that is potentially very broad indeed, and which suggests that the power will extend well beyond merely ‘correcting’ the statute book, notwithstanding the repeated use of that language in the White Paper.

Nor is it clear to what extent any of these limitations upon the powers will be written into the Act — although grounds for concern arise in the light of the following statement in the White Paper:

The Government will give more specific assurances to Parliament about the limits of this power as it makes the case for it being granted. However, this will need to be balanced against ensuring the power is broad enough to make all of the necessary amendments to the statute book within the timeframe determined by the EU withdrawal process.

If adequate restrictions are written into the Bill, then ‘assurances to Parliament’ will be unnecessary: all the assurance that will be needed will be legally hard-wired into the legislation. If, on the other hand, some or all of the restrictions are not written into the Bill, then the implications will be profound. In particular, it will mean that there will be very little scope for legal challenges to the exercise of the powers, given that the more broadly the powers are legally framed, the narrower will be the scope for arguing that the powers have been exceeded. When the Bill itself is published, therefore, the breadth of the terms in which the powers are set out will be absolutely crucial.

Parliamentary scrutiny

No-one doubts that the Government needs delegated powers — and pretty generous powers at that — if it is to have any prospect of completing the Herculean task that lies before it by Brexit Day. But if those powers are not to threaten the balance of our constitutional system, it is imperative that both the courts (in the way described above) are able meaningfully to control their exercise, and that the Parliament can play its part too. On the role of Parliament, however, the White Paper is lamentably threadbare. While apparently content to cherry-pick useful soundbites from the House of Lords Constitution Committee’s report, the Government fails to engage in any meaningful way with the Committee’s detailed analysis of how the exercise of the powers granted by the Bill should be subject to parliamentary oversight and control. The Government appears to envisage a business-as-usual model using existing mechanisms that make it difficult for Parliament to exercise meaningful powers of scrutiny.

In contrast, the Constitution Committee called for a bespoke scrutiny regime for Brexit-related secondary legislation, bearing in mind not just the volume of such legislation but also the potential significance of the matters that will done using the relevant powers. Among other things, the Committee argued that certain secondary legislation under the Great Repeal Bill should undergo a strengthened scrutiny procedure, and that Parliament itself should be placed in the driving seat when it comes to deciding upon the proper level of scrutiny. In particular, it proposed a system of triage whereby a parliamentary committee would funnel different pieces of secondary legislation being made under the Great Repeal Bill into scrutiny mechanisms appropriate to the nature and seriousness of what the secondary legislation was setting out to do.

However, apart from the Committee’s suggestion that the ‘Henry VIII’ powers granted by the Bill should lapse after a given period of time, none of the Committee’s principal proposals are accepted or engaged with by the White Paper. Indeed, the Government gives the impression that it has barely begun to think about these issues:

The Government is mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed. This White Paper is the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area.

For a White Paper proposing the enactment of legislation conferring unprecedented ministerial powers to have nothing more than this to say about how those powers should be scrutinised by Parliament is astonishing. Questions about parliamentary scrutiny lie at the constitutional core of the issues raised by the Bill, and it is regrettable, to put it mildly, that the White Paper contributes so little of substance to the ‘discussion’ for which it calls.

Constitutional politics

That the UK’s territorial constitution is in a fragile state just now need hardly be pointed out. It is therefore legitimate to wonder what the Great Repeal Bill is likely to do for the health of the Union between England, Northern Ireland, Scotland and Wales. The early signs, judging by the White Paper, are that it is unlikely to give the ailing patient a shot in the arm. Given the sensitivities in this area, it is unfortunate, to say the least, that the White Paper devotes just over one page to examining the question of ‘interaction with the devolution settlements’. And to the extent that the question is addressed, mixed signals are sent. On the one hand, the Government indicates that Brexit is likely to result in a net expansion of devolved institutions’ powers:

This will be an opportunity to determine the level best placed to take decisions on these issues, ensuring power sits closer to the people of the UK than ever before. It is the expectation of the Government that the outcome of this process will be a significant increase in the decision making power of each devolved administration.

However, the White Paper also indicates that it should not be taken for granted that powers repatriated from the EU will end up in the hands of the devolved institutions — even if those powers relate to subject areas that are already devolved:

As powers are repatriated from the EU, it will be important to ensure that stability and certainty is not compromised, and that the effective functioning of the UK single market is maintained. Examples of where common UK frameworks may be required include where they are necessary to protect the freedom of businesses to operate across the UK single market and to enable the UK to strike free trade deals with third countries. Our guiding principle will be to ensure that no new barriers to living and doing business within our own Union are created as we leave the EU. To provide the greatest level of legal and administrative certainty upon leaving the EU, and consistent with the approach adopted more generally in legislating for the point of departure, the Government intends to replicate the current frameworks provided by EU rules through UK legislation

If the Government is serious about diverting repatriated powers relating to presently devolved matters away from the devolved capitals to London, then this will necessitate the amendment of the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006. In particular, it will require new reservations to be placed upon the powers devolved to the territorial legislatures and governments, so as to ensure that powers that would have flowed back from Brussels to Belfast, Cardiff and Edinburgh instead end up in London. Yet these changes to the devolution settlements will be politically and constitutionally fraught with difficulty. Indeed, the First Minister of Scotland has already said that the UK Government is planning a ‘power grab’ because of its failure to guarantee that relevant powers will flow to the devolved capitals.

Moreover, it is clear that the Sewel Convention — which requires that changes to a devolution settlement are normally made only with the approval of the relevant devolved legislature — will be engaged by any extension of matters that are reserved to Westminster and Whitehall. Yet it is highly unlikely that the devolved legislatures will be willing to supply such consent. This does not mean that the UK Parliament is legally unable to press ahead in the face of devolved opposition. Indeed, it did precisely that when it recently enacted the European Union (Notification of Withdrawal) Act 2017, against the express wishes of the Scottish Parliament and in spite of the fact that the Sewel Convention arguably applied. But the legal freedom to press ahead regardless does not mean that doing so would be politically possible. Far less does it mean that it would be constitutionally prudent.

A final thought

The doing of that which the Great Repeal Bill will authorise will be monumental in scale. But the task of getting right the legal architecture that the Great Repeal Bill will put in place is no less important. And if the evidence of the White Paper is a reliable guide, the Government has a great deal of further work to do in this regard. It would be naïve in the extreme to suggest that the Government does not need, or should not be given, broad powers to accomplish what is necessary during the next two years. But it would be equally naïve to assume that pragmatic concerns should be permitted to ride roughshod over the requirements of constitutional government.

In a blogpost that we recently wrote together, Stephen Tierney and I argued that:

Brexit is transforming the United Kingdom’s relationship with the European Union. Parliament must seek to ensure that it does not also bring about a dramatic rebalancing of law-making power in favour the executive, the marginalisation of legislative scrutiny and a potentially dangerous unsettling of the territorial constitution.

It is a cause of great regret that the White Paper, far from giving grounds for confidence in relation to these matters, amounts to a source of profound concern. If Brexit was supposed to be about ‘taking back control’ and making Parliament ‘sovereign’ again, then it is to be hoped that Parliament will start as it means to carry on. When, therefore, the Great Repeal Bill comes before Parliament, it will be for MPs and peers to ensure that the extensive legal rewiring necessitated by Brexit is not carried out in a way that paradoxically writes our supposedly sovereign Parliament out of the picture — and that it is not done in a way that amplifies the existential threat that Brexit so plainly poses to the Union between the UK’s four constituent nations.