It is likely to generate so much confusion as to compromise legal certainty and place the rule of law at riskby Mark Elliott / September 7, 2017 / Leave a comment
MPs today begin debating what was once grandly dubbed the “Great Repeal Bill.” The European Union (Withdrawal) Bill, as it is now more soberly known, is intended to avert legal catastrophe when Britain leaves the EU, by ensuring that the vast body of EU law currently applicable in the UK largely remains in place. So, in spite of its moniker, the Bill does not actually repeal very much. It gets rid of the European Communities Act 1972, which currently gives domestic effect to EU law, but goes on to heavily ameliorate the consequences of that repeal. It does so by, in effect, providing for a snapshot of EU law to be taken, as it exists at one minute to midnight on the eve of “exit day,” and converting it into UK law.
However, the Bill also recognises that a straightforward cut-and-paste approach would not work. Some EU law (e.g. that which relates to the single market and the customs union) is unlikely to be of any relevance post-exit, and will need to be repealed. Other EU law will need to be amended to make it fit for purpose following Brexit. Recognising that a great deal of surgery will need to be performed upon the body of EU law before exit day, and given that parliament will simply not have time to perform that surgery itself, the Bill hands the legislative scalpel to ministers, by investing them with delegated powers.
All of this is sensible. Indeed, it is imperative. If such a strategy were not adopted, then Brexit would amount to a legal cliff-edge—and falling over it would entail utter chaos, since it would open up enormous gaps in the statute book. However, the fact that the central aim of the Bill—that is, preserving EU law post-exit—is a necessary one does not place the Bill beyond criticism. And arguments to the contrary—in particular, suggestions in some quarters that objecting to the Bill equates to attempting to block Brexit—are entirely specious. Indeed, the Bill, in its present form, is profoundly problematic in legal and constitutional terms. It is an affront to parliamentary sovereignty. It eviscerates the separation of powers principle. And it risks destabilising the UK’s increasingly fragile territorial constitution.
The notion of “taking back control” was axiomatic to Leave campaigners during the…