Monday

20th Nov 2017

Column / Brexit Briefing

Repeal Bill enters land of unknown

  • The planned 'Great Repeal Bill' is now called 'European Union (Withdrawal) bill'. (Photo: House of Commons)

It is a step into the constitutional unknown. The UK took its first major step towards putting Brexit into law on Thursday (13 July). This will be a marathon, not a sprint, and enjoyed only by parliament’s barrack-room lawyers.

In another sign that the Theresa May government’s pre-election confidence has vanished, the planned “Great Repeal Bill”, the bill consolidating over 40 years of EU law into UK law, has been reduced to the less grandly-titled "European Union (Withdrawal) bill".

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The government’s Brexit department also published three very slim position papers on the Euratom treaty, which is likely to be one of the first issues that ministers compromise on; administrative issues and cases before the European Court of Justice.

Ministers have decided to pick a fresh fight over the status of the Charter of Fundamental Rights. The bill includes a clause stating that: “The charter of fundamental rights is not part of domestic law on or after exit day.”

Labour and the Liberal Democrats have already signalled that they will oppose scrapping the Charter. There is a slight irony here.

Back in 2007, Tony Blair’s government sought a UK opt-out when the Charter was included as part of the Lisbon Treaty, before eventually settling for a protocol stating that the Charter did “not extend” the ability of the European Court of Justice to overrule judgements by UK courts. Ten years, however, is plenty of time for a U-turn.

Because of its lack of majority, May’s government is as vulnerable to political opportunism as it is to substantive issues such as workers’ rights and environmental protections.

'Naked power grab'

The Scottish and Welsh governments have already vowed to refuse to give legislative consent to the bill.

A joint statement by Scottish First Minister Nicola Sturgeon and her Welsh counterpart, Carwyn Jones, termed the bill a “naked power grab” which “does not return powers from the EU to the devolved administrations, as promised. It returns them solely to the UK government and parliament, and imposes new restrictions on the Scottish parliament and national assembly for Wales.”

The bill must be substantially re-drafted, say Sturgeon and Jones. Ministers could still proceed and call their bluff: the devolved governments cannot veto the Repeal bill, but that would risk a constitutional crisis.

Liberal Democrat leader, Tim Farron, says that the May government is “facing a parliamentary version of guerrilla warfare that resembles the days of the Maastricht treaty” in the early 1990s. Yet piloting the Repeal Bill through parliament will surely be tougher than passing Maastricht, which permanently split the Conservative party over Europe.

Great for lawyers

For one thing, the volume of legal acts involved is unprecedented. The bill covers more than 12,000 EU regulations, and over 6,000 directives, along with a mere 7,900 pieces of UK secondary which have implemented EU legislation. Great news if you’re a constitutional lawyer, or a parliamentary clerk.

The government has also promised that a further 800 and 1,000 pieces of secondary law will have to be tabled by executive order – itself a controversial procedure – alongside the bill.

For another, John Major’s Conservative government had an absolute majority to pass Maastricht. May is relying on the support of the Democratic Unionists, and cannot afford a handful of her Conservative MPs to rebel.

While ministers were taking to the airwaves to defend their handiwork, Labour leader Jeremy Corbyn, as well as Sturgeon and Jones were in Brussels to meet with Michel Barnier. Had May secured the majority she expected, it is unlikely that the opposition leaders would have been given an audience.

Now, however, they are plausible alternative government who could yet end up negotiating with Barnier before the end of the Article 50 process in March 2019.

On Wednesday MPs elected chairpersons for its parliamentary committees, with prominent Conservative ‘Remainers’ Nicky Morgan and Tom Tugendhat taking the influential Treasury and Foreign Affairs committees - a further sign that the balance of power has shifted.

No hurry

This vulnerability goes some way to explaining why the government is in no hurry to proceed with the bill.

While the bill was formally presented to MPs on Thursday (13 July), there is currently no date for Second Reading, when MPs will get their first chance to debate and vote on it. Nothing will happen until autumn.

The head of the UK’s national audit office, Amyas Morse, suggested on Thursday that the government’s approach to Brexit could fall apart “like a chocolate orange”. For his part, the former Vote Leave director, Dominic Cummings, says he expects Brexit talks to be “botched”.

This pessimism reflects the struggles facing a government with an ill-defined position on Brexit, and which lacks the votes to force through its will. At home and abroad, Theresa May’s ministers face lengthy battles on all fronts.

Benjamin Fox, a former reporter for EUobserver, is a freelance writer.

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