Westminster Watch

Mark Hatcher on the Great Repeal Bill, legal black holes and bonfires of red tape that will dominate Whitehall and Westminster for the foreseeable future

The Foreign Office document published at the beginning of the year which outlined the process for withdrawing from the European Union (Cm 9216) was unequivocal.

The result of the referendum on the UK’s membership of the EU would be final. The Government would have a ‘democratic duty’ to give effect to the electorate’s decision and the only way to do that would be to trigger Art 50 of the Treaty on European Union.

This process, which is going to dominate Whitehall and Westminster for the foreseeable future, is unprecedented. No country has used Art 50. The complexity of the negotiation, which requires the involvement of all 27 remaining EU member states and the European Commission, will also require the involvement of the European Parliament, which has to approve the Withdrawal Agreement by a majority of its 751 MEPs (probably including UK MEPs).

To complete a successful negotiation before the expiry of the two-year deadline from the date on which the Government triggers Art 50, which it is clear will not be before the end of 2016 but will be before Match 2017, looks heroic. It involves unravelling all the rights and obligations – from access to the Single Market, to structural funds for poorer regions, to joint action on sanctions for example – which the UK has acquired during our accession to the EU and over 40 years of membership. In addition to negotiating its withdrawal, the UK will also want to negotiate its post-exit arrangements with the EU.

Any extension of the two-year negotiating period would require the agreement of all 27 remaining EU member states. If no agreement is reached by the end of the two-year period, and if any of the member states vetoed an extension of this period, the UK would leave the EU without a replacement agreement offering any protection under EU law for the rights of UK businesses to trade on a preferential basis with the EU (or its trade partners), or for UK citizens to live and work in the EU or for UK people to move freely in the EU. The stakes could hardly be higher.

Not only do we face an extended period to negotiate the UK’s exit from the EU, but also its future arrangements with the EU and trade agreements with countries outside the EU. Aside from the initial legal and constitutional uncertainty, there could be up to a decade of uncertainty ahead. Westminster and Whitehall will be dominated by Brexit for the foreseeable future.

It is hardly surprising therefore that the Government Legal Department is on a hiring spree, seeking to recruit 100 full-time lawyers by the end of the year to join policy officials and enough experienced trade negotiators with the relevant language skills (some of which may have become attenuated over the years) to unravel the complexities of EU membership.

In a bid to avoid ‘Europe’ dominating the Tory party conference, the Prime Minister set out plans at the outset of the proceedings for a Great Repeal Bill to be included in the next Queen’s Speech in May 2017. It will not come into effect until after a Withdrawal Agreement has been negotiated. The Bill will not be the instrument to take the UK out of the EU but it will ensure the UK statute book is fit for purpose after withdrawal.

Directly after the conference, the Secretary of State for Exiting the EU, David Davis MP announced in a statement to the House of Commons the ‘next steps’ in leaving the EU. If this was intended to outline the Government’s strategy for achieving the desired orderly and smooth transition, it was remarkably light on substance and no doubt reflects the current state of thinking about the big picture as well as its component parts.

The Great Repeal Bill will have two main purposes: first, to repeal the European Communities Act 1972, thus removing the primacy of EU law and removing the jurisdiction of the European Court of Justice as far as the UK is concerned. Secondly, despite its title, the Bill will preserve and carry over into UK law the body of EU law not already implemented in national law. As a result Parliament will be free, subject to international agreements with other countries and the EU on such matters as trade, to repeal, amend or improve any law it chooses. A consultation with businesses and Parliament on these changes is said to be under way but it is not clear how heavily regulated sectors – notably financial services and agriculture – are going to be engaged with, nor how the Cabinet intends to work together on these issues.

What is becoming clear is that the Great Repeal Bill will pose a number of rule of law issues. On its website the Department for Exiting the EU declares that the Repeal Bill will include powers for ministers to make legislative changes (including repeals) by secondary legislation and consequently with less parliamentary scrutiny (and no power to make amendments). The reality is that Parliament will simply not have the time to review the Executive’s power to legislate. Is this what is meant by enabling Parliament to ‘take back control’?

The Labour Party is going to have its work cut out holding the Government to account over Brexit during what promises to be a prolonged period of legal and constitutional uncertainty. Having joined an exodus of opposition MPs who resigned from Jeremy Corbyn’s shadow team in June, former DPP Keir Starmer QC MP now finds himself in the Shadow Cabinet as Davis’s Shadow.

After a disastrous summer of bitter recriminations, splits and spats, Labour’s annual conference in Liverpool turned out to be a relatively calm affair. But the party appears to have reached a stalemate. With almost two thirds of the Labour membership on his side, Jeremy Corbyn knows that, through Momentum, he has the power to mobilise those in his defence in the event of another leadership challenge before the next General Election in 2020. The clear mandate he currently enjoys makes him virtually unassailable under the current Labour Party rules whereby the leader is automatically on the ballot paper if challenged by MPs. Many Tories will think they can safely slip into cruise control.

A slow stream of announcements from the Leader of the Opposition’s office has confirmed the shape of the shadow justice team. Former Thompsons solicitor, Richard Burgon is joined as Shadow Lord Chancellor by former Commons Justice Committee member, Christina Rees and barrister Yasmin Qureshi as Shadow Ministers of Justice. Burgon’s political adviser is criminal defence barrister and current chairman of the Haldane Society of Socialist Lawyers, Russell Fraser from Garden Court Chambers.

Shami Chakrabarti, recently elevated to the House of Lords, becomes Shadow Attorney General whilst Chancery and commercial barrister, Nick Thomas-Symonds becomes Shadow Solicitor General, displacing Hull-based barrister, Karl Turner who joins the opposition whips.

After nearly six years as a Shadow Minister for Justice (which included doggedly leading the opposition in the Commons against the LASPO Bill), barrister Andy Slaughter MP resigned in June in protest against Jeremy Corbyn’s leadership but he has now been appointed as Shadow Minister for Housing and Local Government.

How much longer he and his colleagues on the Labour benches will remain in opposition and under the current leadership is unclear. What is clear is that Brexit will dominate the rest of the current Parliament and well into the next as Whitehall and Westminster wrestle with the risks of legal black holes and bonfires of red tape.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.