Column / Brexit Briefing
Controlling the right of repeal
By Benjamin Fox
With her divorce letter pressed into the hands of European Council President Donald Tusk, UK prime minister Theresa May and her ministers now have to wait for their counterparts to come to the negotiating table.
Having served its notice to formally leave the EU, May immediately got onto the part of making Brexit a reality she can control: enshrining it in domestic law.
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The proposed repeal bill, set out in a White Paper published on Thursday (30 March), will transfer the 12,000 existing EU regulations into domestic law.
In the UK, there are “7,900 statutory instruments which have implemented EU legislation” with 186 acts of parliament “incorporating a degree of EU influence”.
It is due to come into force on the day the UK leaves the EU.
Brexit Secretary David Davis insists that the Repeal Bill “is not a vehicle for policy changes” and that “wherever practical and sensible, the same laws and rules will apply immediately before and immediately after our departure”.
“Once EU law has been converted into domestic law, parliament will be able to pass legislation to amend, repeal or improve any piece of EU law it chooses,” he told MPs on Thursday.
Some will be reassured by this. The Repeal bill means no change yet, but that “any change is at our own pace”, says Conservative peer Emma Nicolson.
“The de-regulatory paradise ain't gonna happen,” commented Xavier Rolet, the Chief Executive of the London Stock Exchange.
Opacity and sweeping powers
But the bill still gives ministers sweeping powers. The government estimates that around 800 to 1,000 existing measures will need to change and proposes using statutory instruments – laws which usually don’t need a parliamentary debate or vote to be passed.
There’s a certain irony in the fact that after railing against the lack of accountability of EU lawmaking, the British government is now proposing to scrap potentially reams of law without a parliamentary vote.
Neither is the White Paper clear on which laws fall in the ‘800-1000’ category, and it is this opacity that leads trade unions to fear that there is nothing stopping ministers from gutting EU Social Chapter laws.
If there is much to worry about for Remain supporters, purist Brexiteers will be unhappy that the White Paper proposes that European Court of Justice case law carries the same domestic status, in terms of precedent, as UK Supreme Court judgments.
Meanwhile, EU-derived law will continue to take priority over pre-Brexit Day UK law.
Richard Tice, one of the multi-millionaire businessmen who bankrolled the Leave campaign, says ominously that there is still a “long war to reclaim national independence”.
The military tone is jarring, but it chimes with the jingoistic mood of much of the press. The BBC, again the target of right-wing pundits, has been accused of treating the triggering of Article 50 and Repeal Bill like days of mourning.
At least the grandiose idea of naming it ‘the Great Repeal Bill’ has been quietly ditched by the government. It’s not as if the Brexit debate is short of hyperbole.
One obvious point is that the May government is now essentially a single issue administration.
Leaving aside the upcoming Article 50 talks, the Repeal Bill will dominate most of the next twelve months.
There will be little time in the parliamentary agenda for other bills, which could serve as a warning to other eurosceptic governments in the EU.
It is also the time for the UK parliament’s barrack room lawyers to earn their corn.
What to do about the Repeal Bill is now the main decision facing the 48 percent - those who voted to remain in the EU - and their political leaders.
Do they accept that EU membership is definitely over, and focus on trying to shape the new legal political framework, safeguarding particular pieces of EU law on environmental or consumer protection and work-place rights? Or do they dig in to trench warfare, opposing and filibustering ministers on every line of every bill?
For the moment they can criticise the procedure.
Labour's shadow Brexit Secretary, Sir Keir Starmer, warned that the lack of scrutiny could lead to making hasty, ill thought-out legislation, while Liberal Democrat chief whip Tom Brake immediately threatened to “grind the government's agenda to a standstill”.
Either way, following the Repeal Bill will not be for the faint-hearted. The House of Commons' library describes it as "one of the largest legislative projects ever undertaken in the UK".
Benjamin Fox, a former reporter for EUobserver, is a consultant with Sovereign Strategy, a London-based PR firm, and a freelance writer.