A disturbing prospect has arisen as a result of the Brexit debacle: A bonfire of legal rights currently held by British citizens could be brought about on little more than the say-so of government ministers. No parliamentary debate, little likelihood of votes by MPs, rights lost by administrative act rather than new laws passing through both Houses of Parliament.
Here is the plan: Given there are many legal rights enshrined in UK law that derive from the European Union and which will remain in effect even after Britain leaves, an efficient way must be found to comb through them and disapply them where necessary. It could take mammoth parliamentary sessions passing complex repealing legislation. Instead, and rather chillingly, Conservative barrister Martin Howe QC (among others) has said ministers should be “given powers” to disapply them bit by bit as and when it is deemed appropriate.
So Parliament will be asked to pass a piece of primary legislation handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary legislation, probably statutory instruments (see below). It will be “the quickest way of taking the necessary decisions … to reemploy or replace them” he told BBC Radio 4’s Unreliable Evidence 14 Sept 2016.
But giving such powers to the Government would in effect leave whole areas of law at the mercy of ministers including employment and equality rights, privacy and consumer rights, environmental law, copyright protections, safety law, food hygiene and many laws affecting business. It is difficult to establish how much British law is driven by the EU but FullFact.org says this:
“An estimated 13% of Acts [primary legislation] and Statutory Instruments have an EU influence, whereas that rises to 62% when EU regulations are included in addition to Acts and Statutory Instruments.”
So, if all this is open to repeal or amendment by statutory instrument, MPs may as well go home for the duration. There will be hardly any other business and in effect the Government will be able to pass wholly new legislation in large areas of law – presumably not quite the victory for the sovereignty of Parliament (not Government) that some those Brexiters said they wanted.The idea is constitutionally dubious, impractical – and wholly oppressive.
But does this plan even make sense? In particular what about all the EU law that is not part of the 13% that has been rendered into British legislation – the Regulations, Decisions and rulings of the Court of Justice of the European Union at Luxembourg? If FullFact is right, this must make up getting on for 40% of UK law – yet it is not written into our legislation and so can’t obviously be “repealed” by Parliament or government ministers. What will happen to it all? Read the rest of this entry