Great Repeal Bill – Secondary legislation

The Government are planning to introduce a White Paper on the Great Repeal Bill on Thursday 30th March. This will controversially hand Ministers greater powers to use secondary legislation to ease the transposition of EU legislation to the UK statute book, and will seek to give Ministers the power to repeal the European Communities Act when they determine the date of EU exit. 

This briefing outlines some concerns around both issues. Both will hinge on whether or not the UK intends to maintain EU law: Ministers will not be able to repeal the ECA without another Act of Parliament if they remove legal rights which derive from EU law; and they will not get support for extensive use of secondary legislation if their intention is to downgrade rights which derive from EU law.

Open Britain’s Position:

There should be no modification to standards or rights enacted by EU legislation as it is transposed to the UK statute book. Amendments to EU legislation should only be made to facilitate it being carried over to UK law. The Government should not be allowed to make policy changes to existing EU law in the UK through secondary legislation: this would be an abuse of Ministerial and Governmental power.

Furthermore, there should be greater oversight in the House of Commons for how secondary legislation is used.

It is vital that there is a meaningful vote in Parliament on the final agreement which allows the British people to judge if it is in the national interest. Therefore, any attempt now to give Ministers power to unilaterally repeal legislation in future without this being conditional on Parliament giving its consent to the final deal must be resisted. 

The Great Repeal Bill and secondary legislation 

  • The Government’s aim is, on post-Brexit Day 1 to make sure that all existing acquis (EU directives and legislation) which the UK has to implement as an EU member state are transferred in to UK law. The Great Repeal Bill will set out the process for how this is achieved, notably when and how secondary legislation will be used.
  • Legislation can either take the form of primary legislation, in the form of a government bill, which is scrutinised by both Houses of Parliament before being voted on and either not passing, or passing and becoming an Act of Parliament, or, alternatively, legislation can be proposed in the form of secondary or “delegated” legislation.
  • According to Parliament’s website, “Delegated or secondary legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of delegated legislation but it can also include Rules or Codes of Practice.”[1] Secondary legislation is sometimes referred to as ‘Henry VIII powers’,  due to the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.
  • Further, Parliament’s website notes that Secondary legislation can be passed without going through the normal parliamentary procedures. Changes often made by secondary legislation range from the technical, like altering the level of a fine, to fleshing out Acts with greater detail. Often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation.[2]
  • There are two types of procedure for Statutory Instrument (SI): Affirmative procedure: Both Houses of Parliament must expressly approve them; Negative procedure: become law without a debate or a vote but may be annulled by a resolution of either House of Parliament.
  • The Procedure Committee of the House of Commons is currently inquiring into the delegated powers[3] likely to be claimed by the Government in the Great Repeal Bill and we have included extracts from the most relevant submissions in this briefing. 

Key concerns

  • The major concern with secondary legislation is that it can bypass Parliamentary scrutiny and allows ministers to take decisions without a parliamentary vote. 
  • In evidence to the Exiting the European Union Committee on 14 December 2016, The Secretary of State for Exiting the EU, David Davis, stated that if changes were “material” then these changes would be made through primary legislation, noting that he expected technical amendments [to any legislation] to be done through statutory instruments [secondary legislation].[4]
  • This statement is further backed-up by the Government’s White Paper on exiting the European Union, where it states that, “legislation will be needed to give effect to our withdrawal from the EU and the content of such legislation will of course be determined by Parliament. This includes the Great Repeal Bill, but any significant policy changes will be underpinned by other primary legislation – allowing Parliament the opportunity to debate and scrutinise the changes.”[5]
  • However, as noted by the House of Commons Library, even if delegated powers are framed so that they can only be used by Ministers to make EU-related legislation operate effectively, the potential scale of technical changes needed could mean that the powers included are nonetheless relatively significant.[6]
  • The House of Commons Library expects that the delegated powers in the Great Repeal Bill will include broadly-framed Henry VIII powers. Their report notes that “concerns over the constitutionality of Henry VIII powers have been growing in recent years”, citing Lord Judge, former Lord Chief Justice of England and Wales and at present a member of the House of Lords Select Committee on the Constitution, arguing in a lecture from April 2016 that the increasing use of Henry VIII powers “damages the sovereignty of Parliament and that these powers should only be used in a national emergency”.[7] 
  • Taking these points into consideration, the concern in the Great Repeal Bill is that Government attempts to use secondary legislation as a guise to make policy changes. This is not the aim of the Great Repeal Bill and would allow Government to take a view on the incorporation or deletion of EU law from UK law, without having to consult parliament.   

Will the Great Repeal Bill be used to change regulations?

  • The Government need to be clear about whether they will use the Great Repeal Bill to make amendments to EU regulations. This is something Michael Gove is advocating in relation to the vital Habitats Directive and Clinical Trials Directive, for example,[8] and demonstrates that there is a desire for the Government to use this as a Trojan Horse to downgrade EU standards in critical areas of public policy. Many ardent hard Brexit advocates are also long-standing campaigners for environmental and workers’ rights being downgraded. 
  • This also raises the question of whether the Government intend to maintain equivalence with the EU where necessary to have a comprehensive trade agreement. In order to have “frictionless” trade, as Ministers routinely promise, non-tariff barriers will have to be minimised by regulations being harmonised. This is undermined if the Government start to have UK-specific regulation, or if they start to align regulations with other countries, for example the US. As the Centre for Economic and Business Research have spelt out:

“The more regulatory independence the UK tries to carve out, the more difficult it is likely to be for British firms to export to the EU. Furthermore, although the section below is framed in the context of regulatory compliance, it is also very important to note the potential impact of more general EU principles. Compliance with regulatory norms is thus likely to be a necessary but insufficient condition for the present level of single market access to continue. Therefore, the link between regulatory compliance and EU market access cannot be avoided, alongside other single market principles.

“To provide an example, although the regulatory freedom that would result from being outside the EEA would mean the UK could design its own food labels, we would still need to abide by EU food labelling requirements when trading with the EU anyway. In determining future trade arrangements, policy-makers need to consider the balance between the perceived benefits of regulatory freedom and the downsides of regulatory divergence, such as having multiple production lines if the sector is a major trader with the EU. The fact is that, to a varying degree, every sector relies on EU market access, so regulatory freedom could be a costly ideal.”

CEBR, November 2016

  • A vital question for the Government will be whether it plans to replace each of the EU’s 34 regulatory bodies with UK-specific bodies, or whether we will seek to continue to operate within the framework of EU law for specific sectors. If the Government is to set up new bodies, they will have to spell out: how they will fund such new capacity in such a short space of time; the role and remit of the regulators, to make sure that priorities are not altering; whether they intend to maintain equivalence with EU law in the areas overseen by new regulators, as the extent to which we will remain in the EU’s regulatory framework will determine the depth of the UK-EU FTA.[9]

Repealing the European Communities Act

  • The Bill will repeal the 1972 European Communities Act (ECA). The Government has said that it wants to use the Great Repeal Bill to pre-authorise Ministers to repeal Section 2 of the ECA – that concerning implementation of EU Treaties in to Member States’ law – at a date of their choosing. The Government has said: “Secretary of State for Exiting the European Union David Davis has announced today that the Government plans to repeal the 1972 European Communities Act (ECA). The Act gives direct effect to all EU law and the introduction of a new Bill to repeal it will mean the Act ceases to apply from the day of exit.”[10]
  • In theory, the Great Repeal Bill could give Government the power to repeal ECA on the day they consider the day of exit (ie any day leading up to 29 March 2019). However, it will not be possible for the Government to simply repeal the ECA unless all rights conferred to UK citizens by the ECA have been transferred to UK law and will not be lost by the act of repeal. This was the principle upheld by the Miller case and would also apply to any arrangement for withdrawal. The Three Knights’ Opinion by Bindmans says:

“At present it is impossible to know what rights of British citizens and businesses, and of nationals of other Member States, will be lost or retained following withdrawal from the European Union. Parliament is responsible for the United Kingdom’s decision to leave the European Union. It must take that decision once it is clear what the consequences will be for the rights of British citizens and businesses, and nationals of other Member States lawfully resident or established here.”[11]

  • The principle here is that only Parliament has the constitutional authority to authorise, and give legal effect to, the changes in domestic law and existing legal rights that will follow from that decision. The upshot of this that the Government’s desire to repeal the ECA at a chosen date in the future would be contingent on it keeping all rights in place. If the Great Repeal Bill does what it says on the tin and repeals all EU law so everything remains constant, this would work. Any change to rights which derive from EU law due to the repeal of ECA, however, would require a further Act of Parliament. This is why the Government is bringing in separate Brexit Bills, for example on immigration, and why any ‘no deal’ scenario would require a discrete Act to authorise.

Stakeholder views

  • The Institute for Government (IfG) published a report on 20 March on the Great Repeal Bill[12] noting specifically that the Government “needs to avoid the temptation to over-rely on secondary legislation to amend primary legislation; there is a risk this could undermine the legitimate role of Parliament in scrutinising legislation.”[13] The IfG adds that Government should “produce white papers, draft legislation and full impact assessments in advance of introducing bills and secondary legislation to Parliament to ensure that Parliament can undertake well-informed scrutiny.”[14]
  • In the same paper, the IfG also point to the present gap which exists in the capacity of the House of Commons to scrutinise statutory instruments. Whilst it notes that in the House of Lords, the Secondary Legislation Scrutiny Committee considers all statutory instruments laid before Parliament, it argues that none such Committee currently exists in the Commons. The IfG believes that the creation of such a committee would enable the scrutiny of technical measures to be accelerated and more time to be spent on more significant measures.[15] There are four Parliamentary committees which have as part of their mandate the role of oversight of secondary legislation, two in the Lords, one joint Committee and one in the Commons, which has a limited mandate. [16] 
  • In a response to the ongoing inquiry by the Procedure Committee of the House of Commons into delegated powers, Tradecraft, one of the UK’s leading Fair Trade Organisations has submitted evidence arguing that “it would not be appropriate to delegate powers to ministers in relation to a wide range of laws. Scrutiny by parliament is needed particularly in relation to laws relating to labour rights, civil justice, environment and trade policy.”[17]
  • In oral evidence gathered by the Committee on 1 March, Professor of European Union law at the University of Cambridge, Catherine Barnard noted that “leave campaigners got a lot of traction with their message of take back control….there was a strong message that came out. According to Lord Ashcroft’s polling, that was the main reason that people gave to vote leave: to take back control to Parliament.”[18] 
  • Professor of European law at the University of Liverpool, Michael Dougan, noted in the same evidence session that “The real challenge is for Parliament to design a scheme…that does not stray into simply handing the Government carte blanche to rewrite rights and obligations according to its own subjective political preferences.”[19] 
  • The lawfirm, Clifford Chance, wrote on 20 March that “The constitutional issue with secondary legislation is that it is formulated by the Government and receives little effective Parliamentary scrutiny. The Great Repeal Bill therefore risks taking back control from Brussels only to hand it to Whitehall…” [20] 
  • In the submission to the Committee by Frances O’Grady on behalf of the TUC, she states that, “the Bill should include clear nonregression clauses which confirm that neither the Bill nor powers contained within it may be used to repeal, amend or otherwise modify legislation relating to employment law, labour law or equality law. Such provisions would also reflect the government’s stated policy of protecting EU employment rights in the future.” [21]
  • On 7 March, the House of Lords Constitution Committee published a report on The Great Repeal Bill, specifically stating that “that Parliament should make sure the Government does not use delegated powers in the forthcoming ‘Great Repeal Bill’ as a way of changing the law in areas currently governed by the EU, without proper parliamentary scrutiny.”[22]
  • More generally on the Great Repeal Bill, the CBI were quoted as noting in their December report on Brexit that “The Great Repeal Bill has the potential to provide some of the continuity companies are looking for. Businesses will welcome the Great Repeal Bill if it succeeds in its aim of comprehensively ‘carrying over’ legislation. This is widely believed to be the only sensible approach for the short-term.”[23], whilst the BCC in October were quoted as saying that the Great Repeal Bill must deliver 'day one certainty' for businesses[24] 

Open Britain’s view 

  • There should be no modification to standards or rights enacted by EU legislation as it is transposed to the UK statute book. Amendments to EU legislation should only be made to facilitate it being carried over to UK law. The Government should not be allowed to make covert policy changes to existing EU law in the UK through secondary legislation: this would be an abuse of Ministerial and Governmental power. 
  • Open Britain agrees with the Institute for Government that the capacity gap in the House of Commons as regards secondary legislation needs to be addressed. We would encourage and welcome the creation of a Common’s (only) Secondary Legislation scrutiny committee, in addition to House of the Lords Secondary legislation scrutiny committee to be able to perform this role. 
  • The use of secondary legislation should be avoided wherever possible in the Great Repeal Bill as it risks undermining Parliamentary democracy and runs contrary to the principle of Parliament “taking back control”. Secondary legislation does not allow for proper parliamentary scrutiny and could allow the Government an almost “carte blanche” approach to deciding what pieces of EU law will and will not be transposed into UK law post-Brexit. 
  • It is vital that there is a meaningful vote in Parliament on the final agreement which allows the British people to judge if it is in the national interest. Giving Ministers the power now to unilaterally repeal legislation in future without this being conditional on Parliament giving its consent to the final deal must be resisted.

[2] Ibid

[7] Ibid, p.38

[13] Ibid, p.3

[14] Ibid, p.3

[16] (Whilst A House of Common’s Regulatory Reform Committee does exist, it’s mandate as regards secondary legislation is limited in scope to Legislative Reform Orders only, which is secondary legislation allowing the government to make changes to laws which have placed unnecessary burden on businesses). 

[19] Ibid

[23] Making a Success of Brexit, CBI, December 2016, p. 16