1. Exquisite Tweets from @davidallengreen

    PreoccupationsCollected by Preoccupations

    1. A quick thread on what to look out for in today's "Great" Repeal Bill.

    Expected to be published at 11.

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    David Allen Green

    2. At the moment there are poor journalists sweltering in a "lock in" reading the embargoed Bill.

    *waves*

    (I have not seen it yet.)

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    David Allen Green

    3. The Bill's primary purpose is to provide the legal basis for repealing EU law in UK, and placing it on a UK statutory basis.

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    David Allen Green

    4. The main repeal (in full or in part) is of the European Communities Act 1972: legislation.gov.uk/ukpga/1972/68/…

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    David Allen Green

    5. Since 1973 UK has used 1972 Act as a quick and easy way to implement EU law - especially section 2(2) of the Act legislation.gov.uk/ukpga/1972/68/…

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    David Allen Green

    6. One problem is that nobody seems to know just how many s2(2) "statutory instruments" are currently in force.

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    David Allen Green

    7. There have been 1000s made. We know how many. But many revoked, superseded, amended, etc.

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    David Allen Green

    8. So a simple repeal of s. 2(2) would have unknown legal consequences. Lots of mini Euroatoms, where important legal frameworks disappear.

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    David Allen Green

    9. So one job of the Act is to place all those SIs on a new legal basis.

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    David Allen Green

    10. Another problem is that the government will need wide discretionary powers to amend and repeal 1000s of other statutes.

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    David Allen Green

    11. These are the so-called "Henry VIII powers", which effectively make ministers extra-parliamentary legislators.

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    David Allen Green

    12 (This is a bit unfair on the old king, under whom the role of parliament developed substantially, but that's history not politics.)

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    David Allen Green

    13. The legal point with Henry VIII powers is that with the convenience of discretion comes the possibility of court challenges.

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    David Allen Green

    14. High Court can intervene in exercise of a ministerial power in way not possible with primary legislation. Lots of potential litigation.

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    David Allen Green

    15. So Henry VIII powers hand to Whitehall and courts the functions of making and scrutinising legislation. Parliament bypassed completely.

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    David Allen Green

    16. Then comes the biggest problem. A repeal bill, however wide, cannot be sufficient for the task of placing EU stuff on a UK basis.

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    David Allen Green

    17. This is not a simple "decolonization" exercise, basically changing the label on the laws and then letting them diverge over time.

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    David Allen Green

    18. The EU - the Single Market in particular - is based on mutual recognition, regulatory equivalence, information flows and exchanges.

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    David Allen Green

    19. The laws are not all "top down" which can be copied and pasted.

    UK cannot replicate pan-European regimes in any Act of Parliament.

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    David Allen Green

    20. What can be done with any repeal bill is marginal compared with all the legal issues that need to be addressed as UK leaves EU.

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    David Allen Green

    21. But there is enough for the repeal bill - and related legislation - to clog up parliament for the foreseeable future.

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    David Allen Green

    22. And all this when government has no majority and House of Lords is also free to amend the details.

    This will be fun.

    /ends.

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    David Allen Green