Great Repeal Bill: I’m Henry VIII, I Am

Henry VIII

I gave a presentation about the Great Repeal Bill yesterday. This is the first time in a while I’ve been asked to present on a topic other than GDPR. Inevitably, GDPR came up though!

The Great Repeal Bill had its first proper reading in the House of Commons yesterday, 7 September 2017. This is not a post about the pros and cons of Brexit but it is worth summarising what’s happening. I’ll also touch upon the so-called “Henry VIII powers”.

What’s this all about?

The European Communities Act gives effect (and supremacy) to EU law. This includes: “all such rights, powers, liabilities, obligations, restrictions, [ …] remedies and procedures from time to time provided for by or under the Treaties”. Also, the UK government can implement any EU obligation by passing orders, rules, regulations or schemes.

What will be repealed?

The Great Repeal Bill — or the European Union (Withdrawal) Bill to use its official catchy title — repeals the ECA from Brexit Day. That’s the “repeal” bit but it does more than that. It will curtail the free movement of workers and, as the EU has said all the freedoms go together, this will curtail goods, capital and services too. EU law will no longer have supremacy of course, there will be no referrals to the European Court and the UK Supreme Court can disapply or refuse to follow EU case law.

What will be preserved?

Repealing all EU legislation passed over the last 45 years or so would leave the UK statute book a little empty. If you believe UKIP, 75% of UK laws stem from the EU. A more level-headed assessment suggests it’s unlikely to be that high. Either way, it makes sense to preserve all laws on Brexit Day save for those incompatible with Brexit as mentioned above. So that’s what the Withdrawal Bill will do, meaning businesses have certainty over what the law says. It also makes sense to continue with EU interpretation of EU laws passed before Brexit Day but, as mentioned above, the UK courts aren’t bound by this.

What does this mean for GDPR?

The General Data Protection Regulation becomes enforceable in May 2018 and will become law in the UK via the European Communities Act. The Withdrawal Bill preserves it. In fact, the UK government has said it will pass a new Data Protection Act upholding GDPR standards. The UK government wants an early adequacy decision by the European Commission that UK data protection laws uphold GDPR standards (PDF). This would ensure data transfers between the UK and the EU/EEA can continue as at present. Of course, a decision by the UK Supreme Court which interprets GDPR differently to the European Court might jeopardise that.

I’m Henry the Eighth, I am, Henry the Eighth, I am, I am

The most controversial part of the Withdrawal Bill is the so-called Henry VIII powers. These give the UK government broad powers to offset or compensate for deficiencies in retained EU law. Mostly this will be to clarify references in those laws to EU-centric terms such as “member states” or referrals to the European Court. But many, even within the Conservative Party, are concerned that these powers are too broad notwithstanding the safeguards preventing changes to taxation, criminal offences or the Human Rights Act. It would give the UK government unfettered powers for two years after Brexit such as those Henry VIII had in the 16th Century. As anyone who studied law or the constitution in the UK knows, the Glorious Revolution abolished unfettered monarchical powers. Now, Parliament is the law maker in the UK, not the Crown or the Government. Those sections within the Withdrawal Bill are contrary to UK Parliamentary democracy. Even the former Attorney General criticised the powers as “an astonishing monstrosity“.

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