Great Repeal Bill: Anatomy of a Brexit power-grab

"It is the single greatest power grab in Britain's post-war history."
"It is the single greatest power grab in Britain's post-war history."
Ian Dunt By

The standard criticism of the great repeal bill is that it is misnamed. The bill doesn't repeal anything, the thinking goes. It actually copies all the European law we have under the EU into British law, so it should really be called the great Ctrl-C bill or something like that. But actually the great repeal bill is a very good name for it, because what this thing does is provide government ministers with extraordinary new powers to change or eradicate nearly half a century of law with almost no scrutiny from the press or parliament. It is shaping up to be the single biggest executive power grab in Britain's post-war history.

The problem with EU law is that it's all over the place. It comes in two forms: regulations and directives. Regulations are easy enough. They are mainlined bits of EU law directly addressing core areas of EU competence. You put them in the syringe and inject them straight onto the statute book. EU directives are a bit different. These are when the EU says member states need to do something but it's up to them how to implement it. Usually that's done by something called a statutory instrument but sometimes it's done by putting it in a government bill. 

There are currently over 12,000 EU regulations in force in the UK, according to EU legal database EUR-Lex. There are 7,900 statutory instruments implemented directives, according to the House of Commons library. And there are thought to be 186 Acts between 1980 and 2009 which have incorporated EU directives too. Basically, there's European law all over the place. We're not entirely sure where all of it is or what it's doing, so the safest thing to do is to copy and paste all of it into British law on the day Brexit happens and then try to figure out what we'll do with it later. Otherwise, no-one would know what was legal and what wasn't, which regulators still had authority, or anything else. We'd all get sucked into a big legal black hole.


Unfortunately, just copying-and-pasting the law is not enough to prevent legislative chaos. First of all, it doesn't explain what we're going to do with all the European regulators. Just copying the law means it would still say we're under the jurisdiction of the European Medicines Agency, for instance. Except we wouldn't be, because we won't be in the EU anymore. So we have to change that law so it says that we're now under the jurisdiction of whatever new British regulator we've set up. 

We also need to deal with bits of EU law which will become redundant when we leave, or those based on reciprocal arrangements with other EU member states. We need to remove references to 'UK obligations' or 'EU law'. And we need to get rid of bits of EU law which will no longer work, like the a requirement to obtain an opinion from the European Commission on certain issues.

It is a lot of work. It is probably the single biggest legal project in British history. And it has to happen to a very short timetable - the two years demanded by Article 50. Ministers could have tried to extend this timetable but they decided not to, mostly because the Brexit lobby treated any attempt to do so as some sort of Remainer plot. So now we're in a bit of a bind. Or, as the government put it in the repeal bill white paper, "a balance will have to be struck between the importance of scrutiny and the speed of this process". The solution they propose comes in the form of statutory instruments.

'Statutory instruments' is a very boring phrase. You should always pay attention to boring phrases in politics, because that's where they hide the really dreadful stuff. Sometimes, to make things sound more evocative, journalists call them Henry VIII clauses.  They are the most popular form of 'secondary' or 'delegated' legislation.

You might wonder why they need so many names. I suspect it's because the more complicated, tedious and impenetrable the whole system is, the less likely the public are to try to figure out what the hell is going on. And it suits ministers and civil servants that the public don't know what the hell is going on, because if they did there's a very good chance they'd get upset about it.

When a bill is passed, it will list the delegated powers it is handing to ministers. These are the things they will be empowered to do once the bill becomes law.

They are supposed to be used for non-controversial, technical changes in the law. For instance, you might be changing the make of the camera used to catch speeding vehicles, or the company which maintains the IT system for benefit claimants. In other words, they are for policy implementation, not policy making. But here's the thing with power - you can never trust those who have it to use it properly. So what started as a technical bandage quickly became a misused bit of executive creativity. More and more statutory instruments have cropped up in previous years and been used to change bits of law as controversial as banning types of pornography or changing the electoral registration system in a way that provoked outrage from the transgender community. What was once a power reserved for technical changes has started to be used for areas which it was not originally intended for.

What does this all mean? It means that nearly half a century of workers rights, environmental standards, health and safety laws, consumer protections, animal rights, and countless other areas are now at the mercy of Conservative ministers, who can use a rainy Friday afternoon, when everyone is down the pub, to finally start rubbing out bits of law they never liked.

All we have to stop them are their promises. They promise not to misuse these powers. They promise to maintain workers' rights. They promise to only use the statutory instruments for a limited Brexit-related purpose. But when you ask them what structures they are putting in place to stop them from doing so, there is a deafening silence.

There are plenty of concrete promises they could make. They could say that certain parts of the legislative agenda can only be changed with a full Act of parliament. Or they could propose a new type of statutory instrument for the great repeal bill - one with much greater scrutiny than the usual types. Or they could introduce a power to table amendments to a statutory instrument in the bill. Or they could offer an advanced draft of the most important statutory instruments, with an extended period of scrutiny. Or they could invite outside bodies, like charities or trade unions, to sit with MPs on panels assessing the statutory instruments.

We don't get any of that. Despite having nine months to work on it, the white paper put out by David Davis' Brexit department has precious little to say on the specifics of this huge transfer of powers to the executive. In many cases they act like they've only just started thinking about it.

"The government will give more specific assurances to parliament about the limits of this power as it makes the case for it being granted," the white paper insists. "This white paper is the beginning of a discussion between government and parliament as to the most pragmatic and effective approach to take in this area."

This is a remarkable thing to say. The whole reason the government says it needs such broad powers is because of that punishing two-year Article 50 timetable. But now it is suggesting that it's only going to have the debate on how to use those powers once Article 50 has been triggered.

And then the white paper does something really troubling. It starts misrepresenting what statutory instruments entail.

"Ultimately," it says, "the power to make secondary legislation is granted by parliament and each use of these powers is subject to parliament's control." Technically, this is true. In reality, it is absolute hogwash. Parliament is not in control of statutory instruments. The government is. The fact the white paper goes out of its way to pretend otherwise is the greatest possible reason to distrust what the government is doing.

The government has the expertise and the manpower of the entire civil service behind it. They know what they're doing and they know how to work the system to stop things getting bogged down. The opposition have a few members of staff. They are hopelessly outgunned. And that's why hardly any statutory instruments have been rejected since they were created after World War Two.

This is how they do it.

There are two main kinds of statutory instrument procedure: negative and affirmative. The former offers much weaker scrutiny because it doesn't require any parliamentary debate at all. It will therefore dominate the repeal bill process. But even the affirmative ones, which do require parliamentary debate, are almost entirely useless.

Even getting this amount of information about statutory instruments is hard. Very few people seem to be confident on the details of how they are decided, implemented or stopped. The best two sources for reliable information about it at the parliamentary level are Joel Blackwell at the Hansard Society and Alexandra Runswick at Unlock Democracy, while Steve Peers is the legal commentator who has most closely tracked the potential misuse of the powers in the Brexit process in general.

If it's a negative procedure, the statutory instrument is announced with a 40 day period for MPs to try and challenge it. They can do this by 'praying against' it - another example of the unhelpful, arcane language used in Westminster. This can take two forms: either an early day motion (EDM) or convincing the leader of the opposition to use an opposition day motion to fight it.

EDMs are not a useful mechanism. They are a form of political graffiti: colourful and eye-catching and with very little concrete political effect. Usually they die a lonely death with no-one noticing but the MP who set it up. Sometimes they get lots of signatures from fellow MPs or even a smidgen of press coverage. The end result is nearly always the same: they change nothing. The problem is that the government controls the business in the Commons. It decides what gets discussed and when. And it is very unlikely to allocate any time to something challenging its executive authority.

Things get a bit easier if an MP can convince Jeremy Corbyn to use an opposition day motion to challenge the statutory instrument. These provide an opportunity for the opposition to take charge of the Commons timetable. But there are three problems with this strategy. Firstly, it requires that an opposition day motion slot is available in that 40 day period, which isn't always the case. Secondly, it requires that Jeremy Corbyn is on top of the issues and clever about his use of the parliamentary process, which also cannot be guaranteed. And finally, even if both those requirements are satisfied, the government can neutralise the challenge by fobbing it off with a delegated legislation committee.

These committees are supposed to provide a degree of scrutiny to statutory instruments. In reality, they have no power. They're barely even a talking shop.

MPs are sent to sit on these committees as a punishment, typically for voting against their party or some other misdemeanour. It is like being sat on the political naughty-step. Whips tell them that they can use the chance to catch up on correspondence from their constituents or, if it's the season, to do their Christmas cards. That is the level of scrutiny being enforced here.

The average committee hearing lasted for 26 minutes in the last parliamentary session. But anyway, they cannot go on longer than 90 minutes. Most MPs get their first glimpse of the statutory instrument when they enter the committee room. And even then, they're not actually evaluating its likely effects, just whether the wording is clear and makes legal sense. At the end, there is no vote. 

Affirmative statutory instruments are slightly superior. Their main advantage is that MPs don't have to fight to get them to the committees - they start there. That's not a particularly reassuring distinction, though, given the committees are useless.

Once they are past this stage, they have to be voted on on the floor of the Commons. That sounds good, but in reality this too is a mirage.

An approval motion about the statutory instrument is read out on the floor of the Commons. This usually takes place at the end of the working day - so around 10pm, when most MPs are at home and those who aren't wish they were. At this point MPs are free to murmur an objection to the motion. Usually, this would result in a division, triggering a vote, but in this case it just sets up a ballot for the next Wednesday. In any case, this hardly ever happens. Statutory instruments almost always go through on the nod.

There is just one real structural bit of constitutional resistance to the power of statutory instruments: the House of Lords. Unlike the Commons, they have mechanisms to advise them on how to challenge statutory instruments. And unlike the Commons, they control their own business. They decide what gets debated and when.

But the Lords have a different problem. It's a rather ironic one given the subject. They have a perceived lack of democratic legitimacy.

Back in 2015, peers opposed a statutory instrument George Osborne was using to cut tax credits. In response, the then-chancellor set up the review looking into the second chamber's powers on financial law and secondary legislation. It lay out a range of options, all of which reduced lords' ability to challenge the government in this area. Some of its recommendations even suggested removing the power of the Lords to challenge statutory instruments at all.

That review wasn't acted on but it now hangs over the Lords like a Sword of Damocles. They know that if they push their luck it could come swinging down on them. And they know that in the emotional debate over Brexit, any attempt to stand in the way of the government will be presented by ministers and the press as an undemocratic attack on the will of the people. This is rubbish of course - but that's how it will be presented. The Lords are therefore quite risk-averse when it comes to statutory instruments. 

This is the system which Davis says shows "parliament's control". In reality it is a government stranglehold. Nearly half a century of law is now there for the taking. Brexit was supposed to hand control back to the people and return sovereignty to parliament. In reality, it is one of the greatest increases in the power of the government which this country has ever seen.

Ian Dunt is the editor of Politics.co.uk. His book - Brexit: What The Hell Happens Now? - is available now from Canbury Press.

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

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