1. A quick thread on what to look out for in today's "Great" Repeal Bill.
Expected to be published at 11.
2. At the moment there are poor journalists sweltering in a "lock in" reading the embargoed Bill.
(I have not seen it yet.)
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.
4. The main repeal (in full or in part) is of the European Communities Act 1972: legislation.gov.uk/ukpga/1972/68/…
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/…
6. One problem is that nobody seems to know just how many s2(2) "statutory instruments" are currently in force.
7. There have been 1000s made. We know how many. But many revoked, superseded, amended, etc.
8. So a simple repeal of s. 2(2) would have unknown legal consequences. Lots of mini Euroatoms, where important legal frameworks disappear.
10. Another problem is that the government will need wide discretionary powers to amend and repeal 1000s of other statutes.
11. These are the so-called "Henry VIII powers", which effectively make ministers extra-parliamentary legislators.
12 (This is a bit unfair on the old king, under whom the role of parliament developed substantially, but that's history not politics.)
13. The legal point with Henry VIII powers is that with the convenience of discretion comes the possibility of court challenges.
14. High Court can intervene in exercise of a ministerial power in way not possible with primary legislation. Lots of potential litigation.
15. So Henry VIII powers hand to Whitehall and courts the functions of making and scrutinising legislation. Parliament bypassed completely.
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.
17. This is not a simple "decolonization" exercise, basically changing the label on the laws and then letting them diverge over time.
18. The EU - the Single Market in particular - is based on mutual recognition, regulatory equivalence, information flows and exchanges.
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.
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.
21. But there is enough for the repeal bill - and related legislation - to clog up parliament for the foreseeable future.