37: Great Repeal Bill – The real nitty gritty

Second reading of the Bill took place in the Lords (30 and 31 January).

A majority of the House of Lords support remaining in the EU, but the unelected upper chamber is aware it cannot brazenly oppose ‘the will of the people’ as expressed in the referendum to try to ‘stop Brexit’. Instead, the Lords will likely focus (at the upcoming Committee stage) on whether the Bill, in its current form, is fit to be made law, including detailed consideration of technical and constitutional issues such as:

• the ‘coherence’ of UK law after Brexit, in particular, as to the status of transposed EU law, the retention of the ‘supremacy principle’, how EU retained law in general should be interpreted, and how the Charter should be dealt with;
• the extent of delegated powers which the Bill would grant to Government (including Henry VIII powers) and related Parliamentary scrutiny (you can hear an excellent interview on this topic with Lord Judge, Lord Chief Justice from 2008-2013, on Radio 4’s Today here);
• the impact of the Bill on devolution (particularly given the Government has not yet brought forward its promised amendments to those clauses), itself the subject of a separate Lords debate on 25 January 2018; and
• the interaction between the Bill’s clause 9, definition of ‘exit day’, the promised ‘meaningful vote’ and the proposed EU (Withdrawal Agreement and Implementation) Bill.

On the first point, the Lords will be particularly interested in the conclusions of the House of Lords’ Constitution Committee in its latest report on the Bill. In summary, it concludes that:

‘… the Bill risks fundamentally undermining legal certainty in a number of ways. The method proposed to create ‘retained EU law’ – EU law that is being copied over into the UK statute book – will cause constitutionally problematic uncertainties and ambiguities:

• the Bill is not clear exactly what retained EU law will contain; it potentially captures laws that do not need to be saved and creates duplicate copies of laws that have already been transposed into domestic law;
• the Bill transfers rights under EU law, regardless of their applicability post-Brexit, without sufficient clarity as to how they might be amended later;
• the Bill fails to give sufficient clarity and guidance to the courts as to how to go about the task of interpreting retained EU law after the UK leaves the European Union; and
• The Bill also seeks, unsuccessfully and erroneously, to perpetuate the ‘supremacy’ of EU law post-Brexit.’

You’ll recall that, at Commons’ Report stage, neither Dominic Grieve nor Joanna Cherry pushed their amendments on this issue to a vote – they both accepted the Government needed more time to consider the matter, and that it could be dealt with in the Lords.

The Constitution Committee suggests a radical re-thinking of the Bill’s approach to transposed EU legislation, namely, that the Bill should provide that all retained direct EU law (ie EU Regulations which are to be transposed into UK law on exit day) be given the status of an Act of Parliament as if made on exit day. The Committee explains:

‘We consider that if relevant retained EU law is given the status of primary legislation, deemed to be enacted on exit day, it will not only have a clear status in relation to other domestic law, but it will also acquire a primacy in relation to pre-exit domestic law consistent both with the current legal status of EU law and the doctrine of parliamentary sovereignty. This would allow for the removal from the Bill of the ill-fitting ‘supremacy’ principle – a European legal concept rather than a UK one – as the domestic principle of the primacy of the most recent Act of Parliament will apply. It also provides a clear position as to how retained EU law will be treated and amended in future.’

That would require some significant redrafting of the Bill, whether proposed by the Government or through Lords’ amendments put to a vote, but given the seriousness of the matter (compliance of the Bill with the rule of law), it is imperative that the matter is now properly addressed.

In terms of the Charter, the Lords and Commons’ Joint Committee on Human Rights has published a report analysing the Government’s own ‘right by right analysis’ of how those rights are protected elsewhere in UK law. It concludes:

‘The Government’s stated intention is that substantive rights protected by the Charter will not be weakened after exit from the EU. However, the exclusion of the Charter from domestic law and the retention of underlying “fundamental rights and principles” results in an uncertain human rights landscape. There are various reasons why the protection of rights may be diminished owing to clauses 5(4) and 5(5) as currently drafted:
a) firstly, some of the rights will inevitably be lost as they derive from membership of the EU (ie Articles 39–45);
b) secondly, Charter rights which are based wholly or largely on “general principles of EU law” will no longer confer an enforceable right. This means a loss of enforceable rights such as Article 1 (human dignity);
c) thirdly, a number of the Charter rights derive from the European Convention on Human Rights (ECHR) which are incorporated into domestic law by virtue of the Human Rights Act 1998 (HRA). Whilst these rights will continue to exist and confer an enforceable right on individuals, the standing is narrower and the remedies are weaker under the HRA compared to the Charter;
d) fourthly, some of the Charter rights may be reflected in domestic statutes, but may not be as comprehensive as the Charter and may be subject to significant exemptions, for example, the rights to data protection in the Data Protection Bill (as currently drafted) vis-à-vis Article 8 of the Charter;
e) fifthly, some of the Charter rights that are based on EU treaties may be retained by virtue of clause 4 of the Bill if they are directly effective, but it is not always clear whether these provisions are directly effective. The Government itself appears unsure. For example, they state that Article 15 of the Charter (right to engage in work) will be retained if it is directly effective;
f) sixthly, some of the Charter rights are based wholly or in part on provisions of the ECHR or other international treaties that have not been incorporated into domestic law, such as the UN Convention on the Rights of the Child.’

Again, recall that, despite being very exercised about the Charter, at Commons’ Report stage, Dominic Grieve did not table an amendment in respect of the preservation of the Charter (and other EU ‘entrenched’ law) in UK law, in part, because he thought the lawyers in the House of Lords would address the matter in depth.

What’s clear is that these sorts of fine technical issues can no longer be ‘broad-brushed’ – it’s time to get right down to the real nitty gritty.

Enjoying the blog? Why not try the Great Repeal Bill Blog playlist on Spotify.

‘But sooner or later baby, here’s a ditty – Say you’re gonna have to get right down to the real nitty gritty.’ (Gladys Knight, The Nitty Gritty)