As was universally anticipated, the Queen’s Speech today included an undertaking by the UK Government to introduce legislation repealing the European Communities Act 1972 (ECA) and establishing the basis for a functioning domestic statute book following Brexit. The legislation — originally labelled the “Great Repeal Bill” by the Prime Minister in her speech to the Conservative Party conference in October 2016 — will now be known simply as the “Repeal Bill”. That title, thankfully, is less grandiose, although it remains a misnomer. While it is true that the Repeal Bill will repeal something — namely the ECA, the principal legislative vehicle that accords EU law legal effect in the UK — what is far more practically significant is that it will preserve vast swathes of EU law. That is not, however, to suggest that such preservation is anything other than eminently sensible. EU law forms an essential component of the system of laws that apply in the UK today, and chaos would ensue if EU law simply vanished in a puff of red, white and blue smoke at the stroke of midnight on Brexit Day.
I have written before about the Repeal Bill, most recently commenting on the White Paper published in March 2017. What, then, does the Queen’s Speech add to what we know about the likely shape and implications of this signature piece of Brexit legislation? The speech itself adds little. But the official background briefing notes that accompany the speech do contain some interesting pointers. Here, by way of supplementing my earlier piece on the White Paper, I draw attention to three matters that warrant comment in the wake of the Queen’s Speech.
Not just the Repeal Bill
We now know that the Repeal Bill will be accompanied by seven other Brexit-related Bills concerning customs, trade, immigration, fisheries, agriculture, nuclear safeguards and international sanctions. In singling out these areas by carving them out of the Repeal Bill, the Government recognises that such fields will be particularly affected by Brexit, and that especially extensive legislative intervention will therefore be required at the domestic level. It is in such areas that the greatest need — legal and political — arises for bespoke post-Brexit domestic legislative regimes, meaning that the cut-and-paste model to be adopted by the Repeal Bill — whereby EU law will be largely converted into domestic law — would just not do.
However, it is clear that substantial elements of new domestic legislation in these fields will be sensitive to the terms upon which the UK leaves the EU — and, in particular, to the content of any withdrawal and/or transitional agreements between the UK and the EU. For that reason, it appears that the bespoke pieces of legislation on immigration and so on will need to function, at least to some extent, as enabling legislation that confers powers upon the Government to enact secondary legislation in the light of prevailing conditions as Brexit Day nears. For that reason, it will be necessary, from a constitutional standpoint, to play close attention to the systems contained in those Bills for parliamentary scrutiny and control of the likely substantial ministerial powers they will need to supply.
Government and Parliament
The Repeal Bill itself will self-evidently need to confer upon the Government immensely broad and significant powers — both in order to determine which EU laws should be domesticated in the first place, and so as to enable the amendment of such EU legislation in order to render it fit for post-Brexit purpose. Indeed, the House of Lords Constitution Committee recently remarked that the powers liable to be conferred by the Repeal Bill are likely to amount to a “massive transfer of legislative competence” from Parliament to the Government. It is noteworthy, therefore, that the Queen’s Speech briefing notes play this down considerably, repeating the language of the White Paper: thus, we are told, ministers will acquire the power to “correct” EU law in order to ensure that it can work in post-Brexit circumstances. Yet the language of “correction” is hardly apposite. It is inevitable that the process of domesticating EU law will in some instances involve the making of very substantial policy choices — and that raises fundamental constitutional questions about the allocation of authority as between the executive and legislative branches.
No-one doubts that there is a practical imperative requiring a huge amount to be done within a very tight timetable. But there is also a constitutional imperative — that cannot be airbrushed away through the rhetoric of ministerial “correction” of EU law — that demands proper boundaries upon and parliamentary oversight of executive legislative powers. As usual, the devil will be in the detail, and it will therefore be necessary to await the Bill itself before a judgement can be made about the balance struck between these practical and constitutional considerations. The White Paper, however, showed little willingness on the Government’s part to engage with the concerns raised in this regard by the House of Lords Constitution Committee in its recent report on this matter. A minority Government may, however, have less choice than was anticipated before the election in this sphere — and, in particular, the new Government may be less well-placed to get Parliament to write it a largely blank cheque.
The constitutional politics of devolution
The Government’s briefing notes on the Queen’s Speech say:
[The Repeal Bill will] replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision-making powers immediately after exit. This will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.
This rather opaque language conceals a constitutional point of particular significance. The Government appears to have taken the view that powers presently exercised at EU level but which relate to fields lying within the competence of devolved institutions will not (at least initially) flow back to those devolved institutions upon Brexit. That appears to be what is meant by “maintaining” the scope of devolved powers. The implication is that those powers will be frozen upon Brexit, rather than being allowed — as they otherwise would — to absorb EU competences that will be repatriated come Brexit Day.
There may — as the Government hints in the briefing notes and was mentioned in the White Paper — be good policy reasons for not assuming that all EU competences in devolved fields should revert to devolved institutions, given the need to ensure relevant common frameworks within the UK (such frameworks being a given at present when they exist on a pan-EU basis). But if the Government’s apparently preferred approach is to be followed, then this will necessitate the amendment of the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, so as to deprive the devolved institutions of the powers they would otherwise automatically absorb upon Brexit. That, in turn, raises some acutely sensitive constitutional questions, not least in relation to the Sewel Convention.
The Sewel Convention holds that devolved consent is required before the UK Parliament legislates on certain matters. One of those matters is adjustment of the powers of devolved bodies. It follows that if the devolved bodies’ powers are qualified so as to divert powers exercised at EU level to London, rather than allowing them to flow to Belfast, Cardiff and Edinburgh upon Brexit, the Sewel Convention will apply. And it further follows that the devolved legislatures would be entitled to withhold consent to the Repeal Bill if they were not content with the particular adjustments to devolved competence contained in the Bill. Of course, EU law is itself a constraint on devolved competence, making it likely in any event that the Sewel Convention would apply to the Repeal Bill, given that it will remove such constraints. However, the political-constitutional optics of Westminster choosing to restrict devolved competence by diverting powers away from the devolved nations are self-evidently very different from the optics involved in an expansion of devolved competence that was rendered inevitable by the Brexit decision taken by the electorate in the 2016 referendum.
What, then, if the devolved institutions were to take exception to what is proposed? Would it matter? It is clear that it would not be unlawful for the UK Government and Parliament to press ahead against the devolved institutions’ wishes. Even though the Sewel Convention is now recognised in legislation (at least in relation to Scotland and Wales), the Supreme Court made clear in the Miller case on Article 50 that the Convention is not legally enforceable. But that does not make the Convention constitutionally or politically irrelevant. For the UK Government and Parliament to limit the devolved legislatures’ powers against their wishes would inevitably cause substantial political friction — a point that applies with particular force given existing sensitivities in relation to the UK’s territorial constitution. Moreover, if the UK Parliament were to proceed in spite of the devolved institutions’ objections, it would be acting not just politically confrontationally but unconstitutionally (in the conventional sense). And that would inevitably — and rightly — add fuel to the fire.
The UK Government might see things differently. It might point out that the devolved institutions would not be losing powers they had previously in practice enjoyed because the powers, in reality, had been exercisable at EU level. The UK Government might also point out that the Sewel Convention only provides that the UK Parliament will not “normally” legislate on relevant matters absent devolved consent and that the circumstances in relation to Brexit are anything but “normal”. But in the potentially febrile atmosphere in which these issues may end up playing out, insistence upon such constitutional niceties might well cut little political ice — a point that is highly pertinent, given that the constraining effect of constitutional conventions turns ultimately upon the extent of their political bite.
All of which serves as a stark reminder that the EU27 are not the only parties with which the UK Government will need to negotiate as the Brexit process gets underway in earnest. The UK’s relationship with the EU is of course front and centre. But constitutional relationships within the UK will, or at least should, also play a key role in shaping Brexit. The technicalities buried in the interstices of the Repeal Bill are a different matter from the big-picture questions of hard versus soft Brexit that throw the UK’s devolved politics into the very sharpest relief. But the Repeal Bill, as it shortly begins its passage through the UK Parliament, may well serve as a bellwether, given the sensitivities it raises in respect of the UK’s already fragile territorial constitution.
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