Photo: David Davis MP Secretary of State for Exiting the European Union at Downing street, by Dominika Zarzycka,Shutterstock                                                                                       

8,000 laws, previously under EU law, would need to be converted into UK law. The white paper on the great repeal bill was announced today by Brexit secretary David Davis. The bill will introduce EU law into UK law, which will make the transition smooth as the government slowly changes or reviews these laws. At the moment, the corrections needed to be made to EU rules will require 800 to 1,000 statutory instruments. Davis said that the government will allow ministers to make changes to laws after Brexit by giving them temporary powers. 

Great repeal bill white paper: ending the supremacy of EU law 

The white paper sets out the government’s suggestions for an effective statute book after Brexit. 

The great repeal bill will cancel the European Communities Act, 1972 (ECA) and give power to UK institutions. The ECA act incorporated EU law into UK law, providing for the supremacy of EU law. This also demanded that UK courts followed the rulings of the Court of Justice of the European Union (CJEU). The Bill will repeal the ECA the day the UK leaves the EU. But simply repealing the ECA would create confusion because some EU laws, like EU regulations, apply in the UK’s legal system and after the ECA is repealed, they won’t have any effect, something that will leave “large holes in the statute book.” This is why the Bill “will convert directly-applicable EU laws into UK law.”

It will convert EU law into UK law before leaving the EU.

It will create powers to allow officials to make corrections to the laws, and enable domestic law to reflect the arrangements made after any final agreement with the EU.

Despite the fact that the government has talked about domesticated law post-Brexit, the white paper shows that EU law will continue to take precedence over UK law: "If, after exit, a conflict arises between two pre-exit laws, one of which is an EU-derived law and the other not, then the EU-derived law will continue to take precedence over the other pre-exit law."

Delegated powers in the great repeal bill

For more than 40 years the UK has operated under European laws, but converting EU to UK law won’t “be sufficient to provide a smooth and orderly exit.” The document stated: “A large amount of EU law currently applies in the UK. A proportion of this will continue to operate properly once we have left the EU simply by converting it into UK law. For example, large parts of employment law will continue to function properly once we have left the EU. But an even larger proportion of the converted law will not function effectively once we have left the EU unless we take action to correct it.”

Conversion alone then won’t stop the possibility of cases where the law might be redundant or just not operative. This issue will also be experienced by devolved ministers and the document proposes to overcome the challenge by providing “a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU. This will be done using secondary legislation, and will help make sure we have put in place the necessary corrections before the day we exit the EU.” It is explained that “Primary legislation can provide a framework within which Government can propose secondary legislation for parliamentary approval. Ultimately, the power to make secondary legislation is granted by Parliament and each use of these powers is subject to Parliament’s control.” This might sound okay, but the document continues by entering some grey areas: “The Committee also reflected that ‘it is unrealistic to assume that Parliament will be able tightly to limit the delegated powers granted under the Bill’, because to do so would unduly constrain the Government’s ability to adapt converted EU law to fit the UK’s post-exit circumstances. It also recognised that the circumstances ‘will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit.’” This demonstrates how the government will be able to make changes beyond parliamentary controls and debates, passing or altering rights, in a less democratic manner.

“Biggest power grab”

The social-democratic party in Wales, Plaid Cymru, has called the great repeal bill the “biggest power grab” since the annexation of Wales by the English, under the Laws in Wales Acts, 1535-1542. While Davis said that the devolved administrations will have “a significant increase in the decision making powers”, the Welsh party was concerned that Westminster would take over the laws, leaving the three assemblies outside power. Plaid Cymru accepted that Wales voted for Brexit but they didn’t vote for “Whitehall Britocrats to grab power for themselves. Wales also voted to make our own parliament responsible for the governance of our country in multiple devolution referenda – transferring responsibilities away from the bloated Westminster system and closer to the people of Wales.”

The shadow Brexit secretary, Keir Starmer, also said that this was enabling changes to be made to laws without careful consideration by the parliament. He said: “In those circumstances one might expect some pretty rigorous safeguards to the use of these sweeping powers, but none are found in the white paper. In those circumstances, we should go back to first principles – and that is, there should be no change to rights and protections without primary legislation.” For Starmer, these sweeping powers would allow the government to make changes to primary legislation and devolved legislation, changing important rights and asked Davis to “face down those on his own side who will not be able to resist the temptation to water these rights and protections down before they’re even put into this bill”.

The white paper opened a few holes of doubt, including the controversial continuation of EU law as well as the possible abuse of delegated powers. The latter, probably the result of time limitations opens the box of Pandora, where the Government materialises as the ultimate Law with unlimited powers.