This week we begin our marathon parliamentary proceedings on the BREXIT bill.
Its title is ‘A Bill To Repeal The European Communities Act 1972’ but in reality it is not so much a bill of repeal, as of enactment: the twin purposes of the bill are to leave the EU, and to ensure that on the day that we leave our UK law and regulations are identical to those of the EU that we are leaving. This is in order to provide businesses and individuals with certainty and continuity.
Subsequently we may want to diverge and to tailor our own arrangements, but there is too little time now to pick and choose. In the circumstances it is far simpler to incorporate virtually all of EU law and then reconsider bits of it at leisure.
This is an enormous undertaking, and will only be possible if the Bill expressly delegates powers to ministers for secondary legislation. This is already common practice in virtually all modern parliamentary bills. For example, if a bill were to grant new powers to local authorities to enable them to, say, compulsorily purchase land in order to build affordable homes, it might delegate to the minister power to draw up detailed regulations as to the circumstances in which the powers can be used, the limits, the consultation period, the compensation criteria, arbitration, and etc.
Subsequently, after the bill became law, the minister would draw up the regulations and present them to Parliament. This can be done in one of two ways, and the original bill would have specified which of them must be used.
The first method is to debate the new regulations in a committee followed by motions put to both Houses to adopt the regulations. Parliament has to accept or reject the regulations (there is no provision just to amend them).
The Second method is where the regulations automatically become law unless MP’s or peers ‘pray’ against them, secure a debate, and vote them down.
Either way, ministers only enjoy the powers specified by Parliament, and are still constrained by the need to secure parliamentary approval in the exercise those powers.
Such is the complexity of the BREXIT bill, we will have to go further. The European Communities Act 1972 explicitly set EU law above UK domestic law. We did not have to legislate to remove any conflict between EU law and our own, because the 1972 Act instructed the courts to give precedence to EU law. If our law is to be exactly the same as EU law on the day that we leave, then we will have to legislate to resolve all the conflicts that existed or have arisen over the decades, because the 1972 ACT, which automatically resolved them will have been repealed.
This will be a massive undertaking requiring amendments to hundreds of statutes, and it will only be achievable if we do it by secondary legislation -as I have described above, but in these cases we will be granting ministers power not just to make new regulations, but to make regulations that actually amend previous acts of Parliament.
There will be a huge protest about the use of ‘Henry VIII powers’ to steamroller Parliament by allowing ministers to alter laws made by Parliament. The reality is however, that the power is narrowly defined, time limited, and still subject to a vote in Parliament before it can be exercised.
Those who resort to hyperbole about dictatorial powers quashing parliamentary government have a quite different agenda. Their real purpose is to make the BREXIT bill unworkable, in the hope that the democratic decision of voters in the referendum can be ignored, and that we don’t leave the EU at all.