Chapter 1: Introduction
1.Our normal practice is to report on bills when they are introduced in the House of Lords. However, during the process of taking evidence for our continuing inquiry on The Legislative Process, a number of witnesses drew to our attention the possibility that the ‘Great Repeal Bill’, expected to be introduced in Parliament early in the next Session in mid-2017 (assuming, of course, that Article 50 is triggered by the Government as expected), might contain exceptionally broad delegated powers, enabling the Government effectively to re-write the law across whole swathes of the statute book. In the light of this possibility, the Committee concluded that it would be appropriate for it to take the unusual step of publishing a report at this preliminary stage, in order to set out the issues liable to be raised by the ‘Great Repeal Bill’ in their wider constitutional context.
2.We have drawn heavily upon the evidence given to us, both oral and written, for our inquiry on The Legislative Process—we thank all those who submitted written material or gave evidence to us in person. We would like to thank Professor John Bell from the University of Cambridge and Professors Paul Craig and Alison Young from the University of Oxford who came to speak to us about the ‘Great Repeal Bill’ in particular, and we would also like to express our appreciation to the Lords Delegated Powers and Regulatory Reform Committee and the Lords Secondary Legislation Scrutiny Committee for taking the time to meet us to discuss these matters.
Background
3.At the Conservative Party Conference in October 2016, the Prime Minister announced that a ‘Great Repeal Bill’ would be included in the next Queen’s Speech. Detailed information about the Bill is not yet in the public domain. However, in her conference speech, the Prime Minister made two key points clear: that the Bill will repeal the European Communities Act 1972, and that it will convert the ‘acquis’—that is the existing body of European Union law that has effect in the United Kingdom—into UK law. This was subsequently confirmed in a White Paper on Brexit published on 2 February 2017.1
4.The ‘Great Repeal Bill’ is distinct from the legislation that will authorise the triggering of Article 50. That legislation—the need for which was confirmed by the Supreme Court’s judgment on 24 January 2017 in R (Miller) v Secretary of State for Exiting the European Union—is currently before Parliament as the European Union (Notification of Withdrawal) Bill. The Committee published its views on that Bill on 23 February in its report, European Union (Notification of Withdrawal) Bill.2
5.The Government faces a unique challenge in converting the current body of EU law into UK law. As we discuss in more detail later in this report (see paragraph 10) the body of EU law is found in a number of different places, and in a number of different forms. Some is embodied in existing UK primary legislation; some in secondary legislation. Other elements of EU law are directly effective in the UK (by virtue of the European Communities Act 1972), but are not actually written anywhere in the UK’s statute book. Other elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union or regulatory rulings by EU regulators.
6.The task of amending this body of law to fit the UK’s circumstances following Brexit is complicated not only by the scale and complexity of the task, but also by the fact that in many areas the final shape of that law will depend on the outcome of the UK’s negotiations with the EU. This law will need to be amended before it comes into effect on the day of Brexit—sometimes in minor ways, for example by removing references to EU institutions, and sometimes substantially, such as where an EU regulatory regime needs to be replaced with a UK regime.
7.This will probably require, as we explore later in this report, the delegation of extensive legislative powers to the Government to ensure that the complex and time-consuming process of amending EU law as required can be completed by the day of the UK’s exit from the European Union. The challenge that Parliament will face is in balancing the need for speed, and thus for Governmental discretion, with the need for proper parliamentary control of the content of the UK’s statute book. It is on this constitutional issue—the balance of legislative authority between Parliament and the Government—that our report focuses.
8.At present, little detail is publicly available as to how the Government intend to take forward this process—the conclusions and recommendations set out in this report are therefore necessarily conditional and framed in general terms. What is clear is that the process of converting the body of EU law into UK law will be extremely complicated. It will also be done to an external deadline, imposed by the completion of negotiations and the timing of the UK’s exit from the EU.
9.It is in everyone’s interests that, following the UK’s exit from the EU, the statute book is clear, consistent and unambiguous. In that light, we welcome the Government’s commitment to publishing a White Paper on the ‘Great Repeal Bill’.3 It should contain sufficient detail—including draft clauses—to allow for a proper debate on the Government’s approach. This vital task must be taken forward in a way that takes due account not only of the practical imperatives that will flow from the exit process but also of the fundamental importance of maintaining constitutional propriety.
1 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, pp 9–11: https://www.gov.uk/government/publications/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union-white-paper/the-united-kingdoms-exit-from-and-new-partnership-with-the-european-union--2 [accessed 1 March 2017]
2 Constitution Committee, European Union (Notification of Withdrawal) Bill (8th Report, Session 2016 –17, HL Paper 119)
3 HC Deb, 2 February 2017, col 1216. See also HM Government, The United Kingdom’s exit from and new partnership with the European Union, p 9