Friday, 14 July 2017

The Great Copy And Paste Bill™


Farewell Great Repeal Bill

The Great Repeal Bill, which was trumpeted in #MrMe's Lancaster House speech in January, and survived in many a committed Brexiter's imagination long before that word was coined, is an easy enough thing as a headline - repeal the European Communities Act, which implements EU law in the UK, but keep all the old law, up to and including the moment of withdrawal, so that everybody knows where they are.

And on Thursday it made its entrance. Twice, or possibly three times.  Wednesday evening saw a complaint in the Commons that the government intended to brief the media on the bill before it was seen by MPs.  Speaker Bercow "hoped" ministers would do something about that, though the way commentators were talking next morning they'd obviously seen some of it.

Then just after midday it was there, but without the normal pages on the parliamentary web site, and the FT's legal commentator David Allen Green had given it a going over.



It all appeared in the right place following a complaint about this early release and its presentation to the Commons, when no debate was allowed - all as creaky as usual in our Ruritanian parliament.  It was now called the European Union (Withdrawal) Bill - a boast like "Great" isn't allowed in the name of a bill - and I was glad I hadn't actually put any money on my prediction of European Communities (Withdrawal) Bill.

It's quite a short bill considering the ambition of what it's intended to achieve, mostly because it hardly bothers to identify which EU laws are to be copied and pasted into British law.  Essentially it looks at any law which applies "immediately before exit day" and "exit day" is not defined.  A minister has to remember to put a measure through parliament to bring this thing to life.

Drawing back a little, here's Adam Bienkov in Business Insider:  "Huge parts of EU law are already embodied in both primary and secondary UK legislation, while other parts are not really laws at all but judgments made by the Court of Justice, or rulings by EU regulators. Deciding which parts of this will need to be adopted or amended is a bureaucratic nightmare that would take many years to do properly. Britain will have about 18 months."

Long live the European Union (Withdrawal) Bill

A few bits of this great collection of laws can be discarded immediately but most will be copied over.  The hard bit is to change important things before that elusive exit day, which can't all be done in the usual way, with MPs having a few bites at the cherry to identify and resolve problems, then into the Lords for more of the same.  Apart from the scale of the thing, and the limited time available, there's the small problem that many potential changes depend on what is finally agreed by the Article 50 negotiations (and then any trade deal negotiations after that).

(I'm discounting the ridiculous notion of "no deal", though this bill doesn't, entirely.)

To achieve this the bill proposes to allow ministers to make changes with far less scrutiny than usual, using things called regulations (or statutory instruments, or secondary legislation) which parliament can do little more than accept or reject, and in many cases ministers are to be given "Henry VIII powers", so called because of their draconian scope.  Here's a relevant chunk of the bill, and sorry about the page break.


Essentially any minister (because these laws might come under any part of government) can make a change he or she considers appropriate, any change which can be made by an Act of Parliament (a full, proper law), with certain limitations in scope, and with a time limit (different limitations and time limits apply to different parts of the bill).  But notice the last four words of (2) above.  A minister can do anything, including modifying this act, including modifying this part of this act, including removing the restrictions or the time limit.  That would be extreme...

MPs don't like too much secondary legislation and the Lords have made a lot of noise about it, but it's hard to see how this project could possibly work without a least some of it.  David Allen Green says "Other lawyers may have seen discretionary powers wider than clause 7 of this Bill. I have not."  Clause 7 is far more complex than the the one I've selected, but clause 9 is a good enough illustration.

Opposition parties definitely don't like these proposals.  Labour's shadow Brexit secretary Keir Starmer says Labour will demand concessions in six areas, including:

  • ensuring that workers’ rights in Britain do not fall behind those in the EU (which seems to be a matter entirely for future British law, unless Starmer is proposing that the UK-EU withdrawal agreement should contain such a undertaking)
  • incorporating the European Charter of Fundamental Rights into UK law (this will be unpopular with Brexiters - the European Convention on Human Rights is bad enough - and the government's opening position is that it doesn't actually impart much that we don't already have in other ways)
  • limiting the scope of the so-called “Henry VIII powers” (I've also seen a demand to remove any time limits, which might be seen as contradicting that demand)
We'll see what is said in the days up to actual debate on the bill, which won't be until after the long parliamentary holidays, when there will be little more than twelve months left of the time available before the date pencilled in for ratification of any treaties and agreements which come out of the Article 50 negotiations.

 The Article 50 process as of 14 July 2017

Saboteurs department 1

There are rather a lot of saboteurs today, starting with comments on the bill itself

Liberty and Amnesty International want the law to include a commitment not to reduce rights and freedoms, and government to conduct an audit of EU-derived human rights law and ensure these rights and freedoms are protected after Brexit.

In a joint statement, Global Justice Now and Another Europe Is Possible say "EU law incorporates some of our most cherished protections and rights, as well as rules that, for instance, prevent our government from selling products that can be used in torture overseas.  Giving Theresa May the powers of a renaissance monarch to translate these rights and protections into British law is terrifying, as it enables her government to change the way these laws work in fundamental ways, without parliamentary scrutiny".

The Scottish and Welsh governments have threatened to withhold legislative approval (and there will be arguments about how often that will be necessary in the months to come), calling the bill a "naked power grab".  This is due to the fact that any powers "taken back from Brussels" which relate to devolved areas of competence will initially be held by Westminster, to be (re-)devolved at a later date.

Needless to say David Mundell, the Scottish secretary, disagrees.  "This is not a power grab, it is a power bonanza for the Scottish parliament because after this bill has been implemented the Scottish parliament will have more powers and responsibilities than it has today."  Glass half empty v glass half full.

The London Evening Standard has an editorial which exhibits a bit of George Osborne's characteristic hyperbole:  "This is the single greatest act of regulation in UK history. Thousands of EU rules are being imported wholesale into our law. Not one is being watered down, and none of the rules are being abolished".

A careful reading of the explanatory notes which accompany the bill caused a stir among EU expats.  Dr. Paul Daly, Senior Lecturer in Public Law at the University of Cambridge, discusses it here.  The complex clause 7 noted above appears to give ministers extraordinary powers: "The power to deal with deficiencies can therefore modify, limit or remove the rights which domestic law presently grants to EU nationals, in circumstances where there has been no agreement and EU member states are providing no such rights to UK nationals".  It's hard not to read it without sometimes seeing EU citizens living in the UK themselves as "deficiencies".

Saboteurs department 2

Problems were raised in areas quite separate from the star bill of the day.  Osborne's creation, the Office for Budget Responsibility produced a Fiscal Risk Report which warned that recession is inevitable and that a minority government has less power to intervene:  "Governments should expect nasty fiscal surprises from time to time... and plan accordingly. And they have to do so in the context of ongoing pressures that are likely to weigh on receipts and drive up spending and a variety of risks that governments choose to expose themselves to for policy reasons.  This is true for any government, but this one also has to manage the uncertainties posed by Brexit, which could influence the likelihood or impact of other risks".

Amyas Morse, head of the National Audit Office, came up with the image of the day in discussing the current situation:  "What we don't want to find is that at the first tap, this falls apart like a chocolate orange. It needs to be coming through as uniform, a little bit more like a cricket ball".  Claiming that "Brexit was the biggest peacetime challenge to government" but that it was "only just beginning to click into people's awareness" the report cast doubt among other things on the completion of new customs processes just two months before what is currently the established date for Brexit. Government IT projects have a well deserved reputation for coming in late, and contingency is not available for this one since the date is set in stone.

Those two august bodies do these reports all the time but the question of nuclear regulation, discussed on Wednesday,  is (we hope) a one-off.  In response to the government's belated publication of a paper on the subject (which failed to say anything on the live issue of medical radioisotopes).  The chairman of the UK Atomic Energy Authority, Roger Cashmore, hoped that associate membership of Euratom could be negotiated at a "similar cost, if not more than, what we're paying in via the EU at the moment".  The Nuclear Industry Association also remained to be convinced:

"While containing very little detail, the UK Government’s position paper demonstrates the complexity of replicating Euratom arrangements in UK regulation and co-operation agreements with third countries which the industry has warned of. Government must therefore make the need for transitional arrangements its starting point in negotiations. Failure to do so will risk precisely the disruption the government state they want to avoid.

"It remains the UK nuclear industry’s view that retaining Euratom membership will best serve the national interest. It may also be the most straightforward, seamless and sensible way to achieve the government’s stated preferred outcome is through the associated membership the Euratom treaty enables. Exploring that should be a priority in discussions with European institutions.

"The government has also said it wishes to provide 'certainty and clarity' to industry. Given the lack of clarity to date, it is imperative now that the government ensures there is regular and ongoing dialogue with industry so there is a full appreciation of the practical, logistical and administrative consequences of these negotiations."
And finally...  This Twitter thread, reviewed as "All about how UK voted Brexit out of objection to all the EU policies that the UK proudly drove" had been retweeted 11,240 times at the last count.






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