Wednesday 5 October 2016

Great Repeal Bill - some of the reaction

In her speech of 2nd October 2016, the Prime Minister duly announced that there is to be a Great Repeal Bill to repeal the European Communities Act 1972 - (previous post).  The Bill will transpose into domestic law a mass of European Union legislation and powers will be given to Ministers to make domestic secondary legislation so that changes to the law may be made after Brexit actually takes place.  The problem with secondary legislation made under powers given to Ministers is that it usually receives minimal Parliamentary attention and this is a point which MPs would do well to consider carefully.

Unsurprisingly, the idea of the Great Repeal Bill has resulted in considerable comment and here is some of it:

Professor Mark Elliot - Public Law for Everyone -Theresa May's "Great Repeal Bill": some preliminary thoughts

Professor Sionaidh Douglas-Scott - The Great Repeal Bill

Jolyon Maugham QC - Waiting for Tax - Theresa May's mighty throw of the dice

Ciaran McGonagle - A seed of doubt on the difficulties of the ECA repeal Act 

Despite our Differences - Post Brexit Britain, or how to take back some control by losing all of it 

Justice Gap - So just how Great is Theresa May's Great Repeal Bill?

Mrs May also informed her Party Conference that Article 50 would be triggered by the end of March 2017.  It is unclear what the government's exact strategy in negotiations will be and they do not wish to announce it in advance in case the government's position is compromised.  This has led to much speculation that Ministers may be actually seeking a "Hard Brexit" in which the UK leaves the EU without, for instance, access to the single market.  The EU mindset is that access to the single market is inextricably linked to freedom of movement of persons.  Whether the public truly wishes to see such a Hard Brexit is a moot point since the public was not asked about this in the referendum campaign - see The Independent Soft Brexit preferred choice of Britons as poll shows willingness to compromise on immigration and it may be that, for Party political reasons, Theresa May is seeking a Brexit she does not believe in.

A rather more technical issue is what is referred to as Pre-Emption of Parliament.  A central principle of the UK constitution is that Parliament makes the laws, and ministers implement them. On occasion, however, the interests of efficient and cost-effective public administration require that the Government pre-empt Parliament by undertaking preparatory work in anticipation of a bill becoming law.  Concerns have been raised about this practice, both in terms of the lack of understanding of when and how pre-emption occurs, and of the extent to which it takes place.  It seems likely that the proposed Great Repeal Bill will raise issues about pre-emption and the House of Lords Constitution Committee Report of 2103 may come to the fore.

Court hearings:

On Tuesday 4th October, the High Court hearing in Belfast commenced over whether the UK government may use prerogative power relating to foreign affairs and treaties to trigger Article 50 - Belfast Telegraph 4th October.   The parallel action in the High Court in London will be heard commencing 13th October with the Lord Chief Justice presiding.  It is understood that the present Attorney General (Jeremy Wright QC) is to lead for the government.

Meanwhile, Dominic Grieve QC (former Attorney General) has said that, in his opinion, Article 50 cannot be triggered unless Parliament agrees - The Times 4th October (£).

Previous post on the Article 50 and the Prerogative -28th September 2016 - where links to the various arguments may be found.

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