This article was first published in The Commentator.
he Great Repeal Bill – now renamed the European Union (Withdrawal) Bill for procedural reasons – has finally landed. Even before its publication, Labour had threatened to vote against the Bill unless they received ‘concessions’, and pro-EU MPs and peers have insisted this be their last stand.
What, then, does the Bill actually do, and why has it upset so many Remainers?
The fundamental role of the legislation is to co-opt into domestic law the vast amount of EU law which has accumulated over the last 44 years. What is an EU regulation today will become a UK regulation the day we leave.
This should be uncontroversial – by ensuring we are not left with huge gaps in legislation the day we leave, it paves the way for a smooth Brexit.
One piece of EU law which will not be transferred into British law is the Charter of Fundamental Rights – a decision which Labour and the Liberal Democrats are taking as justification for opposing the Bill.
However, they are posturing. The Charter of Fundamental Rights mostly transfers into EU law the provisions of the European Convention on Human Rights (ECHR), a treaty on human rights which predates, and is separate to, the EU. The Government has no plans to leave the ECHR, so its provisions will continue to apply anyway.
In fact, the Human Rights Act already transfers the ECHR’s provisions into UK law, so the Charter of Fundamental Rights would largely be a duplicate.
There are a few other provisions in the Charter of Fundamental Rights (for instance, it enshrines the right of EU citizens to stand for the European Parliament – a provision which would obviously become obsolete if transplanted into UK law after Brexit), but its removal will not be the assault on human rights Labour Remainers are making it out to be, as virtually all its provisions are already enshrined in domestic law.
The European Union (Withdrawal) Bill will also deal with the 44 years’ worth of case law from European courts which has influenced UK law. This case law will, like EU legislation, remain on the books, since if past EU court rulings were rendered null and void, it would create legal chaos.
However, UK courts will no longer be bound by the precedent of the EU courts. The supremacy of EU law and EU courts will end the day we leave.
One slight problem with all this is that vast amounts of EU and domestic law refers in some crucial way to the EU or one of its institutions. Failure to amend these laws to remove those references and replace them with references to British institutions could also create chaos.
As a result, the The European Union (Withdrawal) Bill allows the Government to change legislation to allow it to function effectively, remove redundancies, and remove obsolete references to our EU membership.
It will be able to do this by statutory instrument, a mechanism which allows the Government to pass or amend legislation without a vote in Parliament.
These are the so-called ‘Henry VIII powers’, which Labour, in particular, have denounced as a power grab. They are, however, necessary to quickly prepare our laws for post-Brexit Britain.
Constant Parliamentary battles over minor tweaks to legislation would benefit nobody. The Government’s powers are also limited. They cannot raise taxes, create new criminal offences, make retrospective provisions, implement the final Brexit deal by the backdoor, or impinge upon the Human Rights Act or the Good Friday Agreement. The powers will also expire two years after we leave.
It is also worth noting the Government routinely passes legislation by statutory instrument. 709 have been passed so far this year, including temporary flying restrictions over terrorist attack sites, and amendments to drug laws to cover new drugs similar to those which have already been banned.
The Coalition Government was particularly fond of them, passing 3,485 in 2014. Labour can hardly complain about them either. During their time in office, they passed between 1,664 and 2,285 statutory instruments every year.
The European Union (Withdrawal) Bill is a crucial piece of legislation, and it must be able to pass allowing plenty of time before we Get Britain Out of the EU.
The loss of the Charter of Fundamental Rights is no loss for the state of human rights in this country, since its provisions are virtually all already part of British law. Meanwhile, Labour’s leadership may complain about ‘Henry VIII powers’, but they have yet to explain what alternative protocol could deliver the necessary tweaks quickly enough.
It must be asked to what extent the Labour leadership’s opposition to this legislation is principled, and to what extent it is based on a desire to pander to their pro-EU voters, destabilise the Government, and make the Brexit process longer and more difficult.
It is time for all parties to put the national interest ahead of politics, and approve this necessary piece of legislation.
Joseph Hackett is a Research Executive at Get Britain Out