RSS Feed

Tag Archives: Great Repeal Bill

The Brexit High Court case: actually Parliament already holds all the cards

Posted on

There is a paradox at the centre of the great Brexit High Court case. The applicants demanding a parliamentary vote on leaving the EU assert the doctrine of parliamentary sovereignty – yet to gain their point they have to prove a piece of parliamentary legislation can be overthrown at the whim and say-so of the Prime Minister – by issuing her EU exit notification under Article 50 of the Lisbon Treaty.

But Brexit cannot occur in any effective form without Parliament’s clear and overt agreement – enshrined in legislation. A pro-EU Parliament is in a powerful position, but Theresa May and her Three Brexiteers are not rushing to inform MPs and Peers of the strength of their hand.

The point is that the European Communities Act 1972 is a piece of sovereign legislation – and it will remain intact after the Article 50 notification goes out – and even after Britain leaves the EU if Parliament decides to leave it there. If Parliament says so, it will remain good law, actionable in the British courts and indeed in the Court of Justice of the European Union.

Mrs May can issue her Article 50 notice under Royal prerogative, break with the EU if she wants, but the legislation stays in place – forever, if that is what Parliament wants. Furthermore it can continue to be effective law for as long as the EU continues to exist if that is the will of Parliament. Britain could be outside the EU – yet governed by its treaties, laws, Court of Justice decisions. It could all continue to apply and the UK courts will (or should) apply it insofar as it is practical to do so.

That is because, to hammer home the point, Parliament is sovereign – and the meaning of parliamentary sovereignty is that British courts will recognise the legislation that passes through Parliament and is signed into law by the Monarch (see Edinburgh and Dalkeith Railway Company v John Wauchope).

Now, Mrs May has offered a Great Repeal Bill so Parliament can sweep aside the ECA – but she hasn’t pointed out that Parliament need not sweep it aside at all if it doesn’t want to (otherwise why have a “repeal” Act?). If Parliament wants Britain to be governed by EU law it can be. Which puts Parliament in a powerful position to amend the ECA (via the Great “Repeal” Bill) to dictate the nature of Britain’s continuing relationship with the EU – soft Brexit, hard Brexit, European Economic Area membership or some other system. Or it can leave Britain in the, admittedly anomalous position, of being a sovereign nation governed in part by foreign law. Read the rest of this entry

The Brexit Great Repeal Bill – a rather cunning ploy

Posted on

Note: The High Court has been unpersuaded by the sort of arguments set out below and has now ruled that the Government does not have power to issue its Article 50 notification. The post nevertheless remains relevant regarding the background and possible political implications of the judgment. The 3 November 2016 judgment is available here.

British Prime Minister Theresa May’s announcement of a Great Repeal Bill to set the seal on Britain’s march out of Europe has not received much good press (or good blog, if that’s a thing) among the legal pundits. “No news here”, “inevitable, really”, “bound to have happened at some point” – this has been the general tenor of informed opinion on the matter.

Yet for some reason informed opinion has failed to recognise it as a remarkably clever wheeze that manages to shoot a number of Opposition and Anti-Brexit foxes with one twitch on the trigger. It has undermined the legal case for giving Parliament a direct say on whether Britain leaves the EU and helped shift the political debate to whether Parliament should merely have “oversight” of the process or a say in the final form Brexit would take.

So Ed Miliband’s comments this week included this: “It would be a complete outrage if May were to determine the terms of Brexit without a mandate from parliament. There is no mandate for hard Brexit, and I don’t believe there is a majority in parliament for [it] either.” This is far from a demand for an In/Out vote for parliamentarians before Article 50  notification of EU exit is issued under Royal prerogative in March.

Brexit Secretary David Davies was at pains in his statement this week (October 10) to point out that a vote on the Great Repeal Bill will involve plenty of debate on the issue – but not offer MPs to vote against Brexit: “This Bill is separate issue to when Article 50 [notice of EU exit] is triggered … it [the Bill] won’t take us out of the EU.”  Read the rest of this entry

Bonfire of EU rights: Bring on the Brexit bureaucrats!

Posted on

So what happens after Theresa May’s Great Repeal Bill and Brexit? A disturbing prospect has arisen of 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 order 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, under the Great Repeal plan, will remain in effect 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, possibly in the Great Repeal Bill itself, 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 Brexiters said they wanted. The proposal 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

%d bloggers like this: