UKREN blog

Wednesday 12 April 2017

Great Repeal Bill: #WTF


On 30 March 2017 the government published ‘The Great Repeal Bill: White Paper’, setting out its plans to legislate for the UK’s withdrawal from the EU. It is probably quite an important document but is it only accessible to lawyers and other legal eagles? This blog will give an admittedly one sided and humorous view on what is in it, and what not, and what should be of concern to human rights and social justice NGOs in a world that is just too depressing at the moment.

First of all, why is such a bill – soon be brought before parliament – necessary? At the moment we have three key legal instruments about the EU and its laws, which have ‘primacy’ – given more importance by courts – over domestic laws:

  • The European Communities Act 1972 (yes, for when the UK joined the EU in 1973)
  • EU laws that have already been written into national (domestic) legislation (some 7,900 statutory instruments and 186 acts of parliament)
  • EU laws, mostly regulations, that UK courts can rely on, but are not in the UK’s statute book (these are called ‘having direct effect’).

Repealed

As the European Communities Act sets out the basis and functioning of our membership of the EU, that would clearly need to be repealed on the day we exit the EU, which will probably happen on 29 March 2019.

Before the white paper was published, there was much speculation on whether it would give the government sweeping powers to change laws, especially those that protect workers and equality/non-discrimination rules. Strangely all these lawyer types, not historians, were talking about Henry VIII powers.

This is an old (1539 in fact, clue was in the name) way that Henry VIII made law just by proclaiming it. The modern version is for a government to change laws fairly quickly by so called secondary legislation without parliamentary debate. The government estimates that it will need to pass some 800 – 1000 laws this way, i.e. without parliamentary debate or agreement.

So why doesn’t the government just copy and paste all current EU laws into the Great Repeal Bill? Broadly that is what the ‘Great Repeal Bill’ will do. But only so that it gives the government much more time to amend laws. In the white paper the government says it needs to amend many laws which refer to EU institutions, as these institutions would no longer be relevant to a UK outside of the EU.

Social justice

But human rights and social justice NGOs are worried that among the 800 – 1000 laws to be passed without parliamentary scrutiny will be watered down rights. The task is a mammoth one: there are 12,000 EU regulations in force and they are only one type of EU law. The whole body of EU law, known as the Acquis Communautaire, extends to over 80,000 items.

The white paper is rather ambiguous on what exactly will happen. The government does say it will withdraw from the Charter of Fundamental Rights, the EU’s human rights agreement and that this would not be converted into domestic law. That’s a first negative, although we will still have the European Convention on Human Rights(Council of Europe not EU) and the Human Rights Act – until it is repealed as the government still ‘promises’.

The government has said it will pass new primary legislation (with parliamentary debate) on immigration and a few other key issues. Definitely one to worry about although with full parliamentary debate and scrutiny there will be opportunities to advocate for a positive immigration policy, however unlikely that will be in reality.

Gaping holes

Commentators on the white paper have differing opinions. On the one hand the Equality and Human Rights Commission have looked at it optimistically as an opportunity to strengthen equality law and human rights with recognition in the white paper that the Equality Acts will be retained after the UK has left the EU. The EHRC have advocated for a constitutional right to equality to be part of the ‘Great Repeal Act’.

On the other hand Liberty says ““This white paper has gaping holes where our rights should be. Where’s the guarantee to protect our EU rights so we don’t end up worse off than our neighbours across the Channel? Where’s the guarantee of proper democratic scrutiny?”

A major task, and a legally technical one at that, is for NGOs to keep track of all the legislation that is being amended over the next few years that would have a negative impact on existing rights (it is, from my sceptical point, of view highly unlikely that the government will pass laws that will give additional or enhanced rights). Especially laws amended by stealth – back to what I wrote about Henry VIII powers.

Defending rights

There is a model of working that has been successful so far in defending rights – that of the coalitions of NGOs that have grouped together to save the Human Rights Act. The Human Rights Alliance under the BiHR is one example. Can we form similar alliances that pool our limited resources and bring together our expertise to ensure that EU rights are not watered down or repealed as ‘red tape’?

We can be sure that some businesses will be lobbying for a reduction in worker’s rights, non-discrimination or anything that has a cost attached to it – however much those rights are in society’s interests. A tough task lies ahead.

Sound-bite appeal

As a final ‘by-the-way’, the title of the white paper ‘Great Repeal Bill’ is not likely to be the title of the act that will appear before parliament soon, as parliamentary rules say that acts have to describe laws in a straightforward, factual manner and words like ‘Great’ just ain’t allowed.

The way that this ‘Great Repeal Bill’ has been framed is another example of a sound-bite, emotional appeal government trying to win hearts and minds (and the support of its own parliamentary party) with snappy, populist rhetoric.

Alan Anstead, Coordinator of UKREN

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This blog first appeared on Migrants' Rights Network

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