2 November 2016

Theresa May’s Great Repeal Bill is a cunning contradiction

By Catherine Barnard

At the Conservative Party Conference this year, the Prime Minister unveiled a cunning plan: she promised a Great Repeal Bill (GRB). The GRB is intended both to repeal the European Communities Act (ECA) 1972, the legislation which gave effect to the supremacy of EU law in the UK, and to convert all EU law into UK law.

She knew that the language of “Great” and “Repeal” would have resonance for those Eurosceptics who had tabled various bills with similar names some years prior to the 2016 referendum. It also conjured up the great bills of the past.

Most cunningly, it gave the impression of not only action being taken on the Brexit front but also parliamentary involvement in that action.

Addressing the conference, Theresa May said:

“We repeal the European Communities Act, we will convert the ‘acquis’ – that is, the body of existing EU law – into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses.

But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate.

And let me be absolutely clear: existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.”

But is her plan as cunning as she’d like to think?  The devil is surely in the details. Here, we consider six.

First, the Great Repeal Bill is an oxymoron. Far from repealing EU legislation, it is going to increase the volume of legislation: all the legal acts and court decisions which make up EU law (the “acquis”) will be converted into “British” law.

But what does that mean? Most EU directives have already been implemented into UK law, some by Acts of Parliament (eg equality directives can be found in the Equality Act 2010), the majority by secondary legislation (statutory instruments).

Of those statutory instruments, some have been adopted under powers given by specific Acts of Parliament but the majority have been adopted under the powers in s.2(2) of the ECA.

With the repeal of the ECA 1972 these statutory instruments, which include Regulations implementing the controversial Working Time Directive, will become invalid. The GRB will therefore have to contain a provision ensuring the continued validity of these many measures.

EU Regulations are directly applicable which means they do not need to be implemented; they are automatically part of UK law by virtue of the ECA 1972. These include an important Social Security Regulation which makes provision for, among other things, the European Health Insurance Card, providing free emergency health care in other member states.

All of these Regulations will, therefore, have to be implemented specifically into British law. Thus the Great Repeal Bill will in fact be a Great Expansion Bill, at least for the time being – or perhaps, to be kinder, the Great Retention Bill.

There’s a further question: since Theresa May has committed the UK to converting all the acquis, will that include the treaty provisions themselves and, more controversially, the EU’s Charter of Fundamental Rights, together with its strong emphasis on principles still alien to common law, such as proportionality?

Second, Theresa May sees the expansion as only temporary: the UK will then start on the gargantuan process of reviewing the whole corpus of EU law-derived rules to see what can be amended, what repealed and what improved.

This sounds liberating. But note the caveat that she includes: those reforms will be subject to international agreements and treaties with other countries and the EU on matters such as trade.

The Government’s own website identifies 14,000 international treaties that the UK has signed. These may well significantly constrain the UK’s freedom to act and, in particular, its freedom to deregulate.

Third, Theresa May made the welcome concession to trade unions that “existing workers’ legal rights will continue to be guaranteed in law”. So, for as long as she remains prime minister, the Working Time, Agency and Fixed-Term Work Regulations will continue on the UK statute book.

However, this raises the question of the fate of the judgments of the Court of Justice interpreting these and all other EU-derived measures. Presumably judgments prior to Brexit will be considered binding; those after Brexit will be of persuasive value only.

The Swiss experience is instructive. Officially, judgments of the Court of Justice are persuasive only. For a number of years this meant that an equivalent Swiss judgment was needed to explain what effect the Court of Justice’s judgment had in Switzerland.

Because this became unmanageable, in 2009 the Swiss Supreme Court ruled that the judgments of the Court of Justice would apply unless there was a good reason why not.

In fact, the Swiss courts apply the judgments of the Court of Justice pretty faithfully. Failure to do so, they recognise, means that Swiss law will not keep up to date. It might also jeopardise the Swiss deal with the EU.

Remember: EU rules have been drafted with EU remedies in mind. Those who want to play the EU’s game have to abide by its rules.

Fourth, the Swiss experience raises a further more general point. The EU does not stand still. What happens when EU directives and regulations, which the UK has already implemented, get amended? Will the UK voluntarily amend its law accordingly?

Fifth, the vast process of screening UK law which has implemented EU law to see if it needs to be amended or repealed will be done, according to the Prime Minster, “subject to full scrutiny and proper parliamentary debate”. Parliament does not have the time or capacity to do this.

David Davis is more realistic. He said: “The Repeal Bill will include powers for ministers to make some changes by secondary legislation, giving the Government the flexibility to take account of the negotiations with the EU as they proceed.”

This is likely to mean the introduction of powers under which the executive amends not only statutory instruments but also Acts of Parliament, a process Douglas-Scott refers to as a profoundly unparliamentary and undemocratic way to repeal or amend former EU law.

And if, as Grant Shapps has called for, all EU-based rules will be subject to a sunset clause five years after Brexit, the entire activity of the executive for the next five years will be devoted to the review process.

Sixth, the devolution effect should not be underestimated. Taking back powers to the UK means to Scotland, Wales and Northern Ireland too. The corollary of taking back control means not just to Westminster but to Holyrood, Cardiff Bay and Stormont. And they may decide to do things very differently from Westminster.

The Great Repeal Bill may produce unimaginable consequences. Be careful what you wish for.

This piece stems from the report: Brexit and beyond: How the UK might leave the EU,  published by UK in a Changing Europe with the Political Studies Association

Catherine Barnard is professor of European Law at Trinity College, Cambridge and a senior fellow at UK in a Changing Europe.