Today (13/7/17) the European Union (withdrawal) Bill was Published. This sets in motion the Governments process for converting EU law and placing it on the statute books in the UK. This is a requires piece of legislation, in order to ensure that there is a level of consistency and clarity around laws and regulations, and to ensure that there are no black holes.
This Bill also sets out the method in which the government will review and address the vast amount of laws which are being brought across, and to amend or remove them.
However here lies the crux of the issue. In the Great Repeal bill White paper the Government stated that they planned to use secondary legislative powers to accomplish this. The reason for this is that according to the EU there are some 20,000 legislative acts in force, of which approximately 5,00 apply to all member states.
The secondary legislative powers also known and Henry the VIII powers are delegated powers designed to bypass parliament. These traditionally have been used to tweak and later laws, which would be otherwise a waste of time going through parliament based on the back of court judgements.
There are not many people who are apposed in principle to this approach as its the only real way of accomplishing what will be an unprecedented legislative programme. It was however pointed out when the white paper was published that the control around these powers was extremely vague and ambiguous. It was promised that these powers would be restricted, and the use of sunset clauses would be considered. However now the bill has been published there is no such protection. Calls for a new scrutiny body to oversee and check the changes being made have also failed to make the cut.
Further more there is a clause within the bill that the charter of fundamental rights will not be incorporated into UK law. Rights which have been hard won, including employment rights, which the government has been eroding away will not be protected, and as the scope of this is so large there are a lot of other areas that rights could be cut from. Without security of any sort, we wouldn’t know what had been lost until it had already happened, and was to late.
All we have so far are the promises of David Davis that any major changes will go back through parliament for primarily legislation. However this isn’t reassuring in the slightest given the Governments records of keeping promises. (Nor any definition of what classes as ‘Major’)
The devolved Governments
The devolved Governments will also play a key role within this process due to the ‘Sewel Convention’
What is the Sewel Convention?
The convention that devolved administrations must give consent to legislation on matters that they would ordinarily have sovereignty over
What this means in practice is that the devolved Government have a say in areas which they have direct legislation from. However the Convention isn’t binding so the UK Government can effectively bypass this.
The government has gone one set further and seeks to even avoid having to follow the convention specifically because S.11 effectively means the devolved Governments cannot even legislate on the laws being transferred without the permission of the UK Government
As such Nicola Sturgeon- SNP Leader and Scottish First Minister has already declared that they cannot consent to the bill as it stands. Kier Starmer the Shadow Brexit secretary has already stated that Labour oppose this and will work with Government rebels to defeat the bill. Bear in mind this is one of EIGHT bills that need to be passed in 18 months in order to get the UKs house in order to leave the EU. it took just one EU bill to bring down the Major Government, which had a slim majority, and this is why she is looking to use the secondary powers. If they can get the bill through, there is the very real risk that these will be used to legislate behind closed doors and there will be a real risk of scope creep
Ultimately the government’s power grab undermine the very thing Brexiteers voted for – parliamentary sovereignty.