On Sunday Theresa May announced that a ‘Great Repeal Bill’, repealing the European Communities Act 1972 and providing for EU law to be translated into UK law post-Brexit, would be included in the 2017 Queen’s speech. Mark Elliott offers some preliminary thoughts on what this will mean in practice. He writes that it is likely that the legislation will seek to confer upon ministers substantial powers to carry out the process of deciding which aspects of domesticated EU law are to be retained, which are to be amended and which are to excised from UK law altogether. This fits with the overarching message from the speeches on Brexit at the Conservative conference – that the government is committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions.
‘Brexit means Brexit’ was only ever going to cut it for so long. And although, in her first speech to a Conservative Party conference as Prime Minister, Theresa May has repeated that well-worn phrase, she has evidently come to the view that Eurosceptics – or Brexiteers, as we must now call then – now require more by way of red meat. Such nourishment was, on the face of it, supplied in abundance in May’s speech – by way not only of the announcement that the government plans to trigger the Article 50 withdrawal process by the end of March 2017, but also by means of signalling that the next Queen’s speech will include a ‘Great Repeal Bill’. Since the primary object of the proposed ‘great repeal’ is the European Communities Act 1972 (ECA) itself – the bête noire of the Europhobic right – the announcement of the new bill is undoubtedly a clever piece of political theatre, the aim being to satisfy those who have grown weary, not to say sceptical, of May’s tautological mantra. But does the announcement of the Great Repeal Bill amount to anything more than this?
Announcing the repeal of the ECA is doubtless a sensible tactical move by the Prime Minister given the demands she faces from her right-wing. The ECA gives not only effect to EU law in the UK, but also priority to EU law over UK law – including over acts of parliament. Focusing on the proposal to repeal the ECA fits very neatly with the narrative developed by the Prime Minister in her speech about making the UK a ‘fully-independent, sovereign country’. Or, as David Davis put it in his speech , repealing the ECA will deliver ‘what people voted for: power and authority residing once again with the sovereign institutions of our own country’.
There are, however, two caveats that make the announcement of the ECA’s repeal far less legally significant than might at first be assumed. On the one hand, although the Great Repeal Act (as it will by then have become) will be on the statute book before Brexit day, it will not take effect and repeal the ECA until Brexit day. This announcement does not, therefore, amount to the sort of immediate, shock-and-awe ECA repeal that was floated by some on Brexit’s extreme fringes. That was a suggestion that was never likely to be implemented, given that it would have placed the UK in breach of its EU treaty obligations pre-Brexit. On the other hand, however, repealing the ECA upon Brexit is hardly a big deal. Indeed, a natural assumption would be that the ECA would inevitably be repealed upon Brexit, given that it would make no sense, after leaving the EU, to retain legislation providing for EU law’s effect and priority in the UK. However, we can in fact go further and say that repealing the ECA post-Brexit is legally unnecessary, and will in fact amount to nothing more than a tidying-up exercise. That is so because the ECA only gives effect and priority to such EU laws as are, at any given point in time, binding upon the UK thanks to its EU treaty obligations. Post-Brexit, the UK will have no such obligations, and the ECA will therefore give effect and priority to no EU law whatever.
Although the Great Repeal Bill will repeal the ECA, paradoxically it will not repeal – in the sense of getting rid of – any EU law. That is because the government has – sensibly and inevitably – concluded that the vast body of EU law cannot simply be made to vanish overnight. The chaos that would ensue if it did would be profound. Against that background, the Great Repeal Bill, far from getting rid of EU law from the UK legal system, will preserve it. The intention appears to be that a snapshot of the EU laws applicable in the UK will be taken at one minute to midnight on Brexit eve, and that those laws will – by the statutory magic of the Great Repeal Bill – be transformed into UK laws at the clock strikes midnight on Brexit day. There will then be a leisurely – not to mention Sisyphean – process whereby the enormous body of domesticated EU legislation will be sifted, and decisions taken as to which aspects of (what was) EU law are to be retained, to be amended, and to be excised from UK law altogether.
There is very little detail so far on how that process will be undertaken. But there is every prospect that through its Great Repeal Bill the government will seek to get parliament to confer upon ministers substantial powers to carry out that process themselves. The Prime Minister said in her speech that ‘[a]ny changes in the law will have to be subject to full scrutiny and proper parliamentary debate’. However, it is almost inconceivable that the entirety of the process whereby the body of domesticated EU law is to be reviewed – and some, perhaps much, of it adjusted or removed – could be carried out in this way. The strong likelihood is that the process will be carried on largely by executive means, through the insertion into the Great Repeal Bill of wide-ranging powers enabling ministers, rather than parliament, to repeal or amend domesticated EU legislation. That, of course, would pile irony upon irony, as a government determined to restore parliamentary sovereignty while giving parliament no say over the triggering of Article 50 moved seamlessly into a vast accumulation of executive law-making power that would marginalise parliament’s role in shaping the post-Brexit legislative landscape.
That the new government sees little role for parliament in this crucial area is underlined by other aspects of the speeches given in Birmingham on Sunday. The Prime Minister, for instance, suggested that those arguing that parliament should have a say in triggering Article 50 ‘are not standing up for democracy, they’re trying to subvert it’. She also pointedly said that ‘the negotiations between the United Kingdom and the European Union are the responsibility of the government and nobody else’. The Brexit Secretary gave a similar glimpse of the marginal role that appears to be envisaged for parliament, ruling out the prospect of a ‘running commentary’ on negotiations. If that means that the government is unwilling to keep parliament fully informed, then parliament’s capacity to hold the government to account during the negotiation process will be decidedly limited. These positions sit in tension with the view recently expressed by the House of Lords Constitution Committee, which said that: ‘Parliament and the Government should, at this early stage, take the opportunity to establish their respective roles and how they will work together during the negotiation process.’
Finally, it is important to bear in mind the implications of what is emerging from the Conservative Party conference from the perspective of the UK’s territorial constitution. One of Theresa May’s first acts as Prime Minister was to travel to Scotland for talks with First Minister Nicola Sturgeon, the mood music being somewhat suggestive of a collaborative approach. That music has now been brought to an abrupt halt. Although ‘consultation’ with devolved institutions was promised by the Prime Minister, she baldly asserted that ‘the job of negotiating our new relationship is the job of the [UK] government’: ‘we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom’.
Against that background, the Prime Minister’s proposed sequencing is interesting. If all goes according to plan, Article 50 will be triggered by the UK government under prerogative power before the end of March 2017. The Great Repeal Bill will then be introduced into parliament later in 2017. Doing things in this order minimises the likelihood of devolved institutions derailing the plan, bearing in mind that the Great Repeal Bill will almost certainly require legislative consent motions to be passed by the devolved legislatures. Such motions will be needed – politically and constitutionally, albeit not as a matter of strict law – because the Great Repeal Bill will presumably address not just the repeal of the ECA but also the amendment of the devolution legislation, which presently forbids devolved bodies from breaching EU law. By constitutional convention, however, the UK parliament does not normally legislate so as to adjust the scope of devolved authority without the devolved legislatures’ consent. There is, of course, a strong possibility that such consent would be withheld by the Scottish Parliament. But if, by the time such consent is requested, the Article 50 two-year clock is already running, the withholding of consent would be incapable of placing an insuperable obstacle in the way of Brexit. In such circumstances, domestic constitutional nicety would have to take a back-seat in the face of what would, by then, have become the inexorable reality of impending Brexit.
The overarching message that has emerged from the speeches at the Conservative Party conference is that the government is single-mindedly committed to an executive-led withdrawal process, and is unprepared to tolerate interference in that process by either parliament or the devolved institutions. Of course, there is one institution – the UK Supreme Court – whose interference the government may have to tolerate whether it likes it or not. By the end of this year, the Court is likely to have ruled on the question whether the government has the power to trigger Article 50 without parliamentary authorisation. If the Court rules that parliament must be involved, then the constitutional landscape envisioned in the Prime Minister’s speech will alter significantly, and the government’s plans will have to be revisited accordingly. But if the government is permitted to go ahead and trigger Article 50 without reference to parliament, then the Prime Minister’s speech will have served to make the broad outline of what lies ahead – at least as far as the mechanics are concerned – a little clearer.
This post was originally published on Public Law for Everyone and is re-posted with permission.
About the author
Mark Elliott is Professor of Public Law at the University of Cambridge.
The Constitution Unit Blog 
Pingback: The power-grab. 'It's just a process thing', according to Mundell | Autonomy Scotland
Pingback: 8 challenges Brexit poses to the devolution settlements | Autonomy Scotland
Pingback: The understatement of the century - Autonomy Scotland
Pingback: So much for 'a modern form of Scottish home rule'. - Autonomy Scotland
Pingback: Scotland must decide if it wants to be treated like a region or a country - Autonomy Scotland
denis579, hello, David Davis’s evidence as I have already stated was absolutely clear: the priority, at least in terms of effort and activity is to conclude a new relationship, including trade, within the Brexit timescale. I have already said I think this is both wrong strategically and very dangerous. However, the Select Committees seemed quite content with the level of parliamentary consultation offered by David Davis. The bottom line is that, whereas you say, “there is every prospect of the main thrust of our future within the European continent being set (perhaps irrevocably) during this first stage” I would say that, based on Davis’s evidence, that is precisely the Government’s intention. Indeed he stated quite clearly the government intends two concurrent formal agreements/treaties: one on arrangements for withdrawal, one on the new relationship.
I think there is a high probability that the only type of new relationship the EU is likely to agree within two years is a form of associate membership not so very different from full membership and that its terms are unlikely to be in UK’s best interests. The only other feasible negotiating stance for a new relationship in that timescale is a take-it or leave it free trade as now including financial services, hold the free movement deal; or, if the EU doesn’t like that, WTO rules. A bluff is also possible that UK starts negotiating a complex omnibus deal as David Davis indicated and continues until the last minute and then says, OK enough, WTO rules and that’s it. What Mrs May intends I haven’t the foggiest and as far as I can tell, neither has anybody else.
The only thing I am sure of is that a quick exit keeping strictly to Article 50 (ie WTO rules and no complex relationship) would give everyone certainty earlier than any other approach (within months), allow everyone to cool down, enable both the UK and the EU to reform independently and therefore more truly to their future paths. Obviously other things need to be agreed beyond arrangements for withdrawal, eg., defence and security co-operation, but UK has been doing this for years with many countries and it should not be a big deal – except that in all these areas UK now has to re-learn first to be self-governing once more, and above all the Government itself and its advisers need to get used to being solely responsible for government instead of sharing government with the EU. The mentality must change.
The things that need to be agreed in place of EU membership aren’t all the preserve of the EU. Visa and residence rights for example, although there are EU wide rules would be a matter primarily for UK once outside the EU to agree with individual states. Similarly, access to UK waters. The framework of these relationships may consist of discussions leading to MoU’s, protocols or other forms of agreement including treaties. Some are more urgent than others. UK needs flexibility – as well as a breathing space to address each in turn. Trying to achieve all this while still a member of the EU seems quite wrong headed to me and shows a lack of leadership in Mrs May and her government. She is managing and administering but not leading.
However, all this is politics and tactics. It is not constitutional issues. What frustrates and angers me about this Constitution Unit forum is that the real constitutional issues – the precedents, the law and so on, hardly features at all. So what are the precedents concerning consultation with parliament during treaty negotiations. There must be useful precedents. Is the Dublin Agreement one such? The Sangatte Protocol? How are UK forces formally committed to EU controlled operations? How should EU Directives and regulations be scrutinised now that UK is leaving the EU? These are constitutional issues. There seems to be a situation now where neither government nor parliament enjoys the confidence of the people – of any party. So what does constitutional precedent tells us should be done in these circumstances of at least two upcoming major treaties. That is what I would like to hear, not the politics and not the referendum debate revisited.
Just seen a snippet of that speech. The obvious irony is that the government’s supposedly dictatorial approach is intended to restore sovereign parliamentary democracy to Britain, whilst those opposing the government’s approach in the name of the sovereignty of parliament want sovereignty to remain with the EU. You couldn’t make it up.
@Peter D. Gardner
Your point is well made that the exit deal and the future arrangements for trade between the UK and the EU are two different things and the latter will need work for several years after the formal exit takes place. Presumably the framework of a future relationship referred to in Article 50 can – indeed must -include an interim modus operandi pending a more permanent arrangement. However I think (and it is clear from yesterday’s debate that many MPs including “leavers” as well as “remainers” think) that there is every prospect of the main thrust of our future within the European continent being set (perhaps irrevocably) during this first stage. No-one is suggesting that parliament or indeed even committee/s of parliament should carry out the negotiation itself but it seems perverse not to have one or more votes to test the degree of support within this sovereign entity for the broad approach.
To quote former Attorney General Dominic Grieve – “If a situation arises that the government ….is about to conclude a deal for the future of the UK which can’t command parliamentary approval or at least acquiescence then it’s perfectly obvious…..such a government would not survive.”
My point is that if the government refuses to give way on this the only weapon the Commons may possess to force its hand is to withhold consent to the “Great Reform Bill”.
Well of course it is difficult to know for sure because Mrs May’s Ministers say things that are inconsistent and it may transpire that most of what they say does not come to pass. However, the two parliamentary select committees (EU and Foreign Affairs) seemed quite content with David Davis’s responses to their questions which included assurance that they would be kept informed, that there may well be several debates, motions and bits of minor legislation along the way. The whole issue is coloured by motivation. It is reasonably clear that many of those insisting on Parliamentary involvement in the process of agreeing terms of exit are invoking constitutional arguments in order to block Brexit or to ensure it meets other aims and objectives amounting to a new association with the EU. The referendum offered the voting public the final say on a simple question that has only two answers. The desire to involve Parliament is for the most part an attempt to influence the Government into negotiating a third answer that was not offered. There is no popular mandate for that whatsoever.
I would emphasise that Article 50 concerns arrangements for withdrawal. There is no requirement arising from the treaties to expand the agenda to include any new relationship. The Article refers to a framework of a future relationship. This need be no more than a series of discussions, understandings, MoUs, whatever. In my view the government is being foolhardy trying to slide while still a member of the EU into a new formal arrangement and delaying Brexit until that is agreed. It would be far better to leave, dwell a pause, learn ho to be a self-governing nation again, explore the myriad opportunities in the world open to an independent sovereign nation and only then consider whether any form of close relationship with the EU is desirable. It may transpire that UK is better off remaining a normal nation like every nation in the world except for the 27 others in the EU.
We have yet to hear from the Government what it intends to do about the torrent of EU legislation during this unnecessarily extended negotiation period. So far it seems it might accept the lot until the Withdrawal Agreement comes into effect. This is foolhardy.
@Peter D.Gardner
I am taking it that “you people” refers to people who accept that the referendum provides a democratic mandate for the UK to leave the EU but argue that the principle of parliamentary sovereignty (the upholding of which figured large in leave campaign rhetoric) requires that parliament takes a strong role in settling the terms of exit prior to those terms being finally agreed. If so I plead guilty of being one of “us people”.
Parliament would have the formal role of ratification of the treaty encapsulating the terms but as far as I am aware neither David Davis or anyone else in government has offered any prospect of a vote prior to that. Indeed I have just been listening to a Commons debate this afternoon following an update on brexit from David Davis, much of which was addressing this very point. It was notable that a particularly strong statement on my side of the argument was made by a Conservative MP who voted “leave” .
If you read the evidence given by David Davis to the Parliamentary committees on the Eu and on Foreign Affairs you will see that the Government intends continual dialogue with parliament and a string of debates, votes and legislative possibilities. Ad bloody nauseam.
It may be your view that nearly half the voters are EU luvvies, but I was referring to the Constitution Unit. The Government’s Project Fear was undeniably effective, even though it was shot through with lies, fantasy and misinformation. The referendum question was simple. What happens as a result of the outcome is up to the Government. The Government at the time did not have a plan for Brexit. Therefore it could not have known what the implications would be. Add in Cameron’s supreme arrogance and so it elected Project Fear instead of reasoned factually based argument. The current government is focussed almost exclusively on negotiating a new complex relationship and is delaying Brexit in order to fit the timescale for negotiating it. It is most likely not to be Brexit but some form of associate membership. If it is intended to be Brexit, Mrs May has given David Davis the task of breaking the world record for negotiating a trade deal with the EU, currently seven years, by an order of magnitude. He will fail. What then, delay Brexit until a new deal is in place? Believe me, Mrs May is intent upon keeping Britain entangled with the EU. Brexit is not her aim at all.
The government is not insisting on any such thing as “no opportunity for a parliamentary vote on any other aspect of brexit”.
You people just make it up. Read the evidence of David Davis to the Parliamentary select committees on the EU and on Foreign Affairs.
The general flavour one hears as to the attitude of the opposition parties to “the Great Repeal Bill” is that they will not stand in its way because of the inevitability of the repeal of the ECA in time for the ultimate implementation of brexit. However it is clearly unnecessary to push the GRB through parliament immediately after the Queen’s speech. The hurried timescale is clearly only contemplated to pacify the Tory right wing.
If the government insists that no opportunity for a parliamentary vote on any other aspect of brexit will be allowed can the opposition parties (strengthened by pro single market Tories) not retaliate by refusing a majority for the GRB unless and until a more meaningful vote on the shape of the brexit deal itself is conceded?
‘left wing EU Luvvy whinging and griping’ seems to describe almost half the voters who voted ‘Yes’ – many of us are Conservatives and Liberal Democrats – and of course Scots and Northern Irish. An odd portmanteau term. Maybe we will still be able to avoid Brexit with all its complications and its deep division of the UK.
Freezing EU law at the moment of Brexit will be, I guess, a piece of cake in legislative drafting terms. After all, parliamentary counsel have all the precedents from the dismantling of the British Empire to go on, as well as their own ingenuity. The difficult bit, as shown up by Professor Elliott’s post, is defining what, when EU law is being unpicked, has to be done by Act of Parliament, what has to be done by affirmative resolution, what can be done by negative resolution, what ministers can just do without any parliamentary process – or whether some of it requires a referendum! We shall see what the government opts for, but it is a big step for a government to argue that because it has sole responsibility for treaty making and unmaking it can therefore decide without parliament how the law of the land is to be changed when the treaty basis for what will by then be domestic law has gone.
What this shows up, I think, is that we have no established law or even conventions on how law-making powers are distributed between parliament and ministers. There are obviously different views on this; it was clearly a factor in the government’s defeat in the House of Lords last year on tax credits. Going over each piece of existing EU law and working out whether, if it had been enacted as part of domestic law, it would have been primary or subordinate legislation, looks an impossible task. Minister will no doubt opt for maximum ministerial power, in the absence of any ideas on how else to do it, but it would be a surprise if parliament, where there is, after all, still presumably a majority in each House thinking that Brexit was the wrong course to take, allowed this.
Oh alright, here’s a comment on the last ridiculous paragraph. Parliament, in the referendum bill, gave the public the final say on a simple question: Leave or Remain in the EU? Binary. No half way house. Having got the answer Parliament must carry out Brexit in goof faith.
Secondly, Parliament approved the Lisbon Treaty in toto and without qualification. That includes Article 50. It could have insisted on a return to Parliament. It did not. In exercising Article 50 the UK Government is merely carrying ut the expressed will of parliament.
Obviously, the Great Repeal Bill will not come fully into force until The Withdrawal Agreement itself comes into force. Obviously Parliament will have the chance to consider, one way or another in accordance with constitutional precedent, both. We do not three paragraphs from a Cambridge (my old university) Professor to tell us that.
The important questions not even touched upon by Professor Mark Elliot, include: how can UK legally and constitutionally avoid a host of Directives issued by the EU but not yet enacted into UK law; Directives still being drawn up by the EU, and how regulations still in the pipeline could be avoided before the end of the seemingly accepted two year negotiating period? how can the UK start developing and implementing its own policies, eg., environmental, energy, defence and security, during the negotiating period; why the timetable for agreeing arrangements for withdrawal (essentially fairly narrow and simple and therefore could be agreed in a few months) needs to be prolonged by tying it to negotiations on a new complex relationship which, unlike withdrawal arrangements, requires unanimous agreement by the EU?
etc.
Please let’s have less left-wing EU Luvvy whingeing and griping and more constitutional analysis. Live up to your name: The Constitution Unit. I assume you have the capability to address constitutional issues.