What to expect from the Great Repeal Bill

Posted On: 
30th January 2017

As Parliament prepares to pore over what might be the shortest piece of legislation in recent memory, the European Union (Notification of Withdrawal) Bill, Dods Monitoring consultant Daniel Laing looks ahead to the prospect of the Great Repeal Bill considering if it will give MPs a chance to hold the Government to account as the Brexit process continues.

Given the task ahead, it is no surprise to see it having been described as “the largest scale legislation and policy exercise that has ever been carried out”.
Credit: 
PA

The Great Repeal Bill has been described as both a historic Bill to return sovereignty to Parliament and a less glamourous but ultimately pragmatic piece of tidy up legislation. What we can expect will likely be somewhere in between and it wouldn’t be a stretch to speculate that the upcoming stages of the European Union (Notification of Withdrawal) Bill will see DexEU ministers directing parliamentarians’ questions to the forthcoming bill ahead.

What is it?

The Great Repeal Bill will be the first legislative means by which Parliament starts to ensure the UK statute book reflects the result of the EU referendum. It will do this by repealing the European Communities Act 1972 in addition to dealing with the resulting transfer of European law into UK law.

It is distinct from the Bill to provide the legal power for the Government to trigger Article 50, introduced by Secretary of State for Exiting the European Union David Davis this week.  In practice, the Repeal Bill can instead be described as the legislative mechanism which removes European law, as it applies in the United Kingdom, from the statute book.

Once the UK formally leaves the EU, the European Communities Act would no longer apply impacting what the House of Commons Library estimates to be 13 per cent of primary and secondary legislation between 1993 and 2004.

Therefore, the Great Repeal Bill will embody the cleanup framework by which UK law will function post-Brexit and is a critical first step as we advance towards an absolute exit. The provisions of the fully formed legislation would then only be triggered once the UK had left.

Currently, the Act means that a clash between an act of Parliament here would result in EU law taking priority: repealing the Act will therefore end European Court of Justice jurisdiction in the UK.  However once repealed, any secondary legislation enforced through the European Communities Act would no longer apply. Therefore, it will be necessary for the Great Repeal Bill to provide the machinery for saving desired pieces of legislation, avoiding legislative gaps and establishing the primacy of Parliamentary legislation.

Given the task ahead, it is no surprise to see it having been described as “the largest scale legislation and policy exercise that has ever been carried out”.

When can we expect it?

During her Conservative Party Conference speech on Brexit Theresa May said the Repeal Bill would begin the formal process which made sure “our laws will be made not in Brussels but in Westminster.”  We can therefore expect the legislation to be of huge significance and occupying the time of government, parliamentarians and organisations in the months to come.

Indeed, it will be a challenge for anyone with a policy or campaign objective that falls outside of the European debate to find the ear of decision makers in the coming months.

The Bill will be the centre piece of the 2017 Queen’s Speech, expected around May. The Government plan to introduce it very early in the Parliament, so will be closely scrutnised alongside the details of the vital negotiations that will be happening concurrently across the capitals of Europe.  

A significant amount of parliamentary time and resource will be allocated and with the Government keen to meet its March 2019 negotiation deadline, it will no doubt be looking to this key legislative vehicle to get them nearer the finish line.

The consequences for other Bills including many that have yet to be published are already clear, with the Bus Services Bill already being pushed back until after the upcoming recess.

Parliament’s role and next steps

The Great Repeal Bill will be a Government Bill subject to full Parliamentary scrutiny and the Government have promised it will be “debated extensively” in terms of primary legislation, major policy changes and secondary legislation, all put before both Houses. Indeed, Davis has promised “no shortage of debate or votes”.

The Bill will convert existing EU law into domestic law allowing Parliament to make amendments to the Great Repeal Bill to maintain, repeal or adapt existing secondary legislation from the European Communities Act; and, provide scrutiny over a timetable to repeal primary legislation which might no longer be needed.

Davis also indicated that the Bill would include powers for ministers to make changes to secondary legislation, giving the Government flexibility to take the EU negotiations into account. Although it is still not clear what these powers will look like. 

Following the court ruling that devolved administrations do not have a veto, any aspects of the Bill pertaining to the devolved settlements would raise the issue of consent from the devolved legislators. The Secretary of State has explained that no existing powers would return to Westminster, however there would need to be a decision made on where powers returning from the European Union would best sit.

There is also the question of English Votes for English Law (EVEL) and whether it would apply to the legislation. While Davis indicated that circumstances in which EVEL applied was unlikely, ultimately the decision would sit with the Speaker of the House, currently John Bercow.

Of vital consideration will be parliamentarian’s role in scrutinising the resulting secondary legislation.  Given the volume of legislation involved, in practice much of this Bill work will have to be done via delegation through statutory instruments, and many are now calling into question whether the current procedure is the best vehicle for such detailed assessment.

Dods will be tracking both the Bill and secondary legislation as they are considered by Parliament. Please get in touch for more details on this service.