EU Withdrawal Bill: Is Henry VIII coming back?

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September 11, 2017 by Paul Goldsmith

Withdrawal bill

So today sees the big debate on the second reading of the European Union (Withdrawal) Bill. This significant Act of Parliament has had a variety of pseudonyms, starting with ‘The Great Repeal Bill’, being reduced to just a ‘Repeal Bill’ and now the more innocuous name with which it is making its journey through first the House of Commons and then the House of Lords. But the Bill itself is nothing like as innocuous as its name. Dominic Grieve, a former Attorney General and now a Conservative MP (yes, that would be the party in Government bringing forward this bill), called it an ‘astonishing monstrosity’. The Labour Party have whipped MPs to vote against it.  All the bill is doing is making Brexit possible, so why the fuss?

Put simply, the fuss is because when the Leave campaign said Brexit would allow us to ‘Take back Control’, they meant for Parliament (elected representatives of the people) to take back control of making laws. Parts of the Withdrawal Bill happen to pass a bit too much control to the Government, bypassing Parliament. What they do with that control is the big worry.

Parliament is our ‘legislature’ (passes laws), and the Government is our ‘executive’ (proposes laws). From the moment the 1972 European Union Act was passed, our Parliament became a secondary legislature compared to the European Court of Justice. Brexit was supposed to overturn that. The Withdrawal Bill repeals the 1972 Act, copying across all existing EU legislation onto the UK statute book, ensuring a smooth transition the day after Brexit actually happens. Parliament can amend, repeal or improve these laws as necessary. Because we will have the EU rules and legislations as our laws this should make making a trade deal with the EU easier.

This will be a massive legislative project.The total body of European law, dating back to 1958, is known as the Acquis Communautaire. It binds all member states and in 2010 was estimated to consist of about 80,000 items, covering everything from workers’ rights to environment and trade.

Major swathes of the UK’s statute book will need to be examined to see if they work after Brexit. Simply transposing EU law into UK law will not be enough, because much of EU law refers to EU institutions, which we won’t be part of. So the Government plans to create powers to correct these anomalies where necessary. This will require about 800 to 1000 measures called statutory instruments to be created to make sure the bill functions properly. Herein lies the problem.

The 1539 Statute of Proclamations gave Henry VIII  the power to legislate by proclamation, without any Parliamentary scrutiny. This is why the plan for the Government to be able to do this to ‘correct the statute book where necessary’ are being called ‘Henry VIII powers’. What if, say opponents of the bill, the Government used this power to make hasty, ill-thought out legislation to which no Parliamentary scrutiny was then applied? Ministers claim that their powers will be time limited and will not be used to make policy changes.

There is a different answer the Government could give, which is to point to the 7,900 statutory instruments that were used to implement EU legislation since 1972, also without full Parliamentary scrutiny. Pro-EU campaigners didn’t seem to mind those powers being used then.

Labour’s position on this is to argue for more accountability over the delegated powers that the Bill will give to the Government. They worry also that because EU law covers a lot of areas of law that have been devolved to Scotland, Wales and Northern Ireland, but the Withdrawal Bill first puts those laws back at Westminster, this could also be used as a ‘power grab’ by Westminster over the devolved legislations (remember, they got their powers from the previous Labour Government. This has the appearance of principled opposition, but with the need to recognise that the current Labour leadership’s every waking moment revolves around ‘taking down the Tories’ and all they need is a few Tory rebels coming to vote against this bill to achieve that.

The Lib Dems worry about the Government managing to make changes to ‘vital protections, from workers’ rights to the environment. Given the Lib Dems’ official policy at the moment is a second referendum on Brexit, there is a suspicion that any reason they can find to oppose this bill, they will find.

This second reading will most probably get through the House of Commons, because Tory Remainers are determined to let it get into the Committee Stage and have proper scrutiny before they actually vote against it. But getting through a third reading will be much harder.

Should the vote go through, the work on the laws and regulations has to begin and then be ready for March 2019, which is when the Article 50 process ends. At the same time, as you will know, our negotiations with the European Union will be going ahead, so we are having to create and establish a new law and regulatory regime without knowing what post-Brexit landscape those laws are going to support.

Nobody said it was going to be easy…did they?

 

 

 

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