Opinion
Bronwen Maddox 4 May 2017 10:35am

The problem with the Great Repeal Bill

The Great Repeal Bill is, in theory, the next part of Brexit that the UK can best control. But it could bring at least three considerable problems at home

The Great Repeal Bill is, in theory, the next part of Brexit that the UK can best control. But it could bring at least three considerable problems at home

The Great Repeal Bill is the next stage in the UK’s exit from the European Union – that is, the next stage that the UK can itself control. Even so, it could bring at least three problems: in the passage of the bill itself; in its effect on parliament; and in complicating devolution even more at a moment when relations with Scotland’s government are antagonistic and when independent government in Northern Ireland is collapsing.

The words “the Great Repeal Bill” have been invoked since the referendum to signify the sloughing off, in one great shudder, of the burdens of EU legislation. In practice, the bill is the opposite: its prime aim is to encode into UK law the accumulated layers of EU legislation, allowing Britain to repeal parts of it later at its leisure.

But potential problems rear up immediately. It will be tempting for the government to use the process for more than a mere “cut and paste” of EU legislation: to use it to anticipate and codify some of the changes it wants to make permanent.

That would be a mistake, whatever the lobbying from the right of the Conservative party. It would be to invite complications as the bill passes through parliament. The timetable is already tight – the Commons will consider the bill until around November, when it passes to the Lords, but it still needs to be cleared by early 2018 to have a hope of completing other necessary legislation in time and avoiding “cliff edges”.

That brings us to the second problem: that between 10 and 15 other bills will be needed as well as the Great Repeal Bill to handle the exit. There will need to be a substantial financial bill, and ones concerning customs, immigration, farms and fisheries, and many other areas of regulation now prescribed from Brussels. In a normal year, any two or three of these would constitute a full year’s work.

The implication is that both Houses of Parliament will have almost no time for other legislation for several years. Ministers are quietly being told to pursue their ambitions without legislation if possible. The prime minister’s hopes of an agenda beyond Brexit – on social mobility and industrial policy – will, with the exception of her bid to extend grammar schools, largely have to be done without new laws. The temptation will be to get as much passed through secondary legislation as possible, using so called “Henry VIII powers”, which avoid the need for full parliamentary debate. But that would be to risk the charge that passage has been secured without proper debate and assent.

The third problem is on devolution, where the Great Repeal Bill brings two kinds of potential trouble. The government has not yet made clear whether it will ask Scotland, Wales and Northern Ireland to pass their own bills on legislation that affects their areas, and whether it will ask them to sign “legislative consent”, motions giving their approval to UK legislation that affects their powers.

Politically, this is full of traps. The Scottish National Party MPs in the Commons can seek to obstruct this if the details are not to their liking – or if they are unhappy with the government’s response to Nicola Sturgeon’s desire for a new independence referendum.

It is an understatement to say that navigating all this – while beginning to negotiate a deal for future relations with the EU – strains the capacity of ministers, negotiating teams and officials. The path is also strewn with political challenge both from within the Conservative party and from the SNP. The temptation will be to cut corners to save time and avoid challenge. That would be a serious mistake, though, making the result vulnerable to the charge that after all that effort, it was still in important ways illegitimate.

Bronwen Maddox is director of the Institute for Government and a commentator and broadcaster

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