The Great Repeal Bill: Neither Great Nor A Repeal Bill

Before the referendum and after, for those British citizens who in their infinite wisdom wished to see their country wave goodbye to the irksome EU, ‘control’ served as a useful byword for ‘immigration’. It turned a negative into a positive in one fell swoop: for instead of demanding an end to ‘uncontrolled’ immigration, one could assert control as a right, and as an act of restoration, removing from the ‘Leave’ equation some of its insular, xenophobic, and outright racist overtones.

What is more, the term could be spun off into two discrete arguments for leaving the EU, so that in Theresa May’s snippet rhetoric, the will of the people meant both ‘control of our borders’ and ‘control of our laws’, ‘control’ becoming the operative word in spite of the fact that so much of the Leave campaign rested upon a scaremongering and spiteful anti-immigrant point of view.

Everybody wants to be in control of their own destiny, but when it comes to representative democracy, the word alas is pretty nebulous. And when it is applied to the realm of law and the respective authorities of the EU and Britain, few people seem to know precisely where the two stand. Far from exerting control over the whole of UK legislation, the European Union has borne little direct influence on British law where it concerns taxation, welfare, healthcare, criminal law, or education, while in the realm of defence better to call another referendum given how the country remains beholden to NATO and the United States.

How many people possess any sort of understanding of the difference between regulations, which are legally binding, and directives, which are implemented by national parliaments, in the case of the UK usually by means of statutory instruments? But ‘control’ has been the cry regardless, even if those eager to condemn the impositions of the EU have tended to resort to its purported bans on bendy bananas and overpowered vacuums.

In a show of wresting back control of our laws, last October Theresa May promised a ‘Great Repeal Bill’. With its immediate purpose to overturn the European Communities Act 1972, it was styled as a decisive break from EU legislation, meant to sever once and for all the UK’s reliance on those damned bureaucrats residing in Brussels. As Brexit Secretary, it has fallen upon David Davis to begin the onerous task of filling in May’s characteristically broad outline. And the first thing to note when it comes to the ‘Great Repeal Bill’ is that it hardly lives up to its name, being neither a repeal bill nor by any measure great.

The bill will have to take a different name for official purposes, because value-laden, highly speculative, sloganeering terms like ‘great’ are not permitted in legislative titles. And Davis has admitted himself that it could better be described as a ‘great continuity bill’ or a ‘great conversion bill’, because far from repealing EU law, it will instead serve to transpose thousands of EU regulations directly into the UK statute book.

The white paper introduced by Davis this week under the guise of the ‘Great Repeal Bill’ is supposed to ensure a ‘smooth and orderly exit’ as Britain sets about disentangling itself from the various EU institutions. Making use of secondary legislative powers, beyond the transposition of thousands of regulations, it would allow the government to reword laws related to the EU without the approval of MPs.

Davis vows that government ministers will make no substantial changes as they transpose and reword laws, stressing that the use of delegated legislation will be for ‘technical changes’ only. But opposition parties have been quick to raise fears of a power grab, with Green MP Caroline Lucas saying ‘Far from being ‘technical’, the Great Repeal Bill is a huge attack on our democracy. The government wants unlimited power to amend law’.

Offering nothing in the way of parliamentary oversight, laws rewritten at whim by the government could affect environmental protections and workers’ rights. More, the Scottish National Party and Plaid Cymru have expressed concerns that EU responsibilities in the supposedly devolved areas of agriculture, environment, and transportation will simply be seized and dictated by Westminster.

Yet while those on the left conveyed a now familiar sense of dismay over a government which seems intent on evading all scrutiny, those further still on the right lamented the white paper for not going far enough. It indicates that Britain possesses no immediate plan to withdraw from the European Convention of Human Rights, and accepts however reluctantly that instead of the bonfire of regulations which some Leave campaigners envisioned, the influence of the EU will continue to ember and burn.

The so-called Great Repeal Bill would come into effect when Britain leaves the EU, and the secondary legislative powers afforded to government ministers would be time-limited. Davis indicated that the government will seek to pass a series of separate bills on substantial policy issues including finance, trade, and immigration. But the challenge of transposing regulations and rewording existing law will be monumental enough, described by a House of Commons report as ‘one of the largest legislative projects ever undertaken in the UK’.

The task at hand shows both the extent and the limitations of the EU’s influence over British law. There are currently 12,000 EU regulations in force, with 7,900 statutory instruments in the UK which have implemented EU legislation. Yet just 15% of the acts of parliament implemented between 1980 and 2009 – 186 of 1,302 – will have to be amended because they incorporate some degree of EU influence.

EU legislation passed before the date of Brexit will continue to apply to Britain. And the changes made under the auspices of the Great Repeal Bill will need to be flexible enough to sustain the rule of law should exit negotiations to nobody’s surprise at the last possible moment frightfully collapse.

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