We should always be careful when an adjective like ‘great’ is attached to a piece of law in Britain. The Great Reform Act of 1832 wasn’t that great and the Glorious Revolution of 1688 wasn’t very glorious and wasn’t a revolution.
Theresa May’s proposed Great Repeal Act of 2017 could join these misnamed changes. Its essential purpose is to take, in one heave, all EU law and turn it into UK law the instant we finally Brexit. One commentator described it as a huge legal cut and paste job. However, even this underwhelming cut and paste could cause all sorts of political and constitutional problems as this blog explains. So here’s six questions that might determine how the ‘Great Repeal’ goes:
- Will the House of Commons oppose it? It’s unlikely the Great Repeal Bill will be rejected outright (though it could be). More likely is that MPs could disrupt its progress and use procedure and process to slow it, question it and possibly amend it. There are around 500 MPs who are pro-EU and 100-150 or so confirmed Brexiters. May can whip it through (see 2) but those numbers, to me, spell trouble.
- Will Conservative MPs rebel? May has a majority of just 16 and many of her backbenches are unhappy and could use the bill to let the Prime Minister know. The ghost of John Major and Maastricht still stalks the backbenches. Remember, it wasn’t that Major lost votes but the constant media speculation that eroded his authority.
- Will the House of Lords oppose it? Again, it’s unlikely they’ll oppose it outright. But the House of Lords is estimated to be around 5-1 in favour of EU membership, is packed full of lawyers and sees itself as the guardian of constitutional and civil rights. And, of course, no one controls the timetable. It’s also not clear where the Salisbury convention stands here-the referendum was in a manifesto but was the result?
- Who will scrutinise it? There’s all sorts of time stealing options available. The law will have to be published in draft, lengthening the whole process. There is also a convention that constitutional issues can be debated by the whole chamber of one or both Houses and are normally given plenty of time (Scottish and Welsh devolution in the 1990s both had entire days dedicated to them).
- Will the devolved assemblies agree? Legally there’s little they can do but protest despite the (largely formal) need for legislative consent. Politically there could be far more trouble. May’s apparent overriding of Scotland will play well to her core (English) support already the SNP are making it look like London bullying Edinburgh again. And the apparent shift to hard Brexit again raises the question of the Northern Ireland border.
- What will the Bill come to symbolise? If the Bill is just admin then it may pass relatively simply. But some laws come to be symbols of failure or incompetence and represent far greater issues: think of the Dangerous Dogs Act, the Hunting Act or Human Rights Act. As the main chance for Parliament to be involved in Brexit, the passage of the law could become, by default, the battleground for a three way fight between hard Brexiters, soft Brexiters and Remainers.
The danger for May is that this ‘Great Repeal’ will steal her government’s time, energy and focus. The last three Conservative Prime Ministers were all destroyed by a potent combination of EU membership and an unhappy party. Could May’s Bill help make it four?