Richard North, 31/03/2017  
 


After all the hype, David Davis's Great Repeal Bill (or, at least, the White Paper) is a bit of an anti-climax. As expected, the Government proposes to repeal the ECA, it is going to convert EU law as it applies to the UK into domestic law and then it is going to give the Government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU. 

For all the faux outrage from Labour, this is an entirely necessary move and should be uncontentious. Changes to laws to make them functional will be promulgated by Statutory Instrument (SI) so, in theory, there is parliamentary control over the process – more so than when the laws were brought into being in the first place.

What the commentariat are missing is the sheer scale of the exercise. We've given examples of laws (as in the CFP regulations) where hundreds of amendments will be needed, almost to the extent of requiring complete re-writes.

And then, as with so many of the regulations which create EU systems, the Government needs to put new infrastructures in place in order to make them work. This is not just a question of re-writing text, but of rebuilding our entire administrative structure.

Given the resources being allocated to this task, and the pressures already on the civil service, it is hard to see how the Government can be ready in time. And its task will be made no easier by the fact that much will depend on the shape of the Article 50 settlement and any free trade deal that might be negotiated.

Additionally, drafters will have to deal with a Brussels machine that is constantly bringing out new regulations, and updating and consolidating existing laws. In some cases, as fast as our people amend the regulations, they will have changed, requiring them to start all over again.

Should the work have been completed by Brexit day, we then have the prospect of thousands of SIs being laid before Parliament, more or less simultaneously. Those few MPs who will be prepared to put the effort in and read them will be overwhelmed. And since even fewer will actually understand what they read, Parliamentary scrutiny will be more token than real. But it will be more real than when the regulations were first made, as EU law.

When – or if – the exercise is finally complete, it will give us notional regulatory convergence with the EU. In terms of trading standards, and what are called "flanking" measures, our book of rules will be very similar to that of the EU.

However, there is still potentially a major problem as something like 20 percent of traded products are not covered by harmonised standards and rely for market access on mutual recognition of standards, based on the ECJ's Cassis de Dijon ruling. No amount of regulatory convergence will assist British exporters.

This is where British businesses will discover the limitations of the Great Repeal Bill. Mr Davis's faithful civil servants may dutifully enact Regulation (EC) No 764/2008 into the UK statute book, but it will have no effect whatsoever.

This lays down procedures "relating to the application of certain national technical rules to products lawfully marketed in another Member State", effectively implementing the Cassis de Dijon ruling. But, as this applies only to EU Member States (and Efta States in the EEA), the UK will no longer be able to rely on it.

Come Brexit day, one can anticipate that other matters will demand attention. Once we have left, the general assumption seems to be that the process of absorbing EU law into the UK statute book will cease. That means that we will automatically start to diverge, with ramifications for market access. Significant differences between EU and UK standards will lead to UK exports to the EU being rejected at its external borders.

This will create problems at several levels. Firstly, exporters will no longer be able to assume that, because their products comply with UK law, they will necessarily meet EU requirements. Firms will have to make their own checks, and keep abreast of any changes, possibly without assistance from HMG.

But Her Majesty's Government isn't off the hook either. Increasingly (and already to a very great extent), EU law is implementing global standards promulgated by a bewildering array of standard-setting bodies – to which the UK are signatories.

Currently, the Government doesn't have to worry too much about this. The EU monitors these bodies and implements their requirements, sometimes with no UK input and without even the majority of our MPs (and ministers) even being aware of what is happening.

Therefore, even if the Government is not too concerned about maintaining regulatory convergence with the EU, it will have to shadow the entire range of international bodies to which we are party, and implement their rules directly without being able to rely on the EU packaging them into legislative format.

Potentially, this will have some impact on the Great Repeal Bill. At the moment, the White Paper insists that any powers introduced by the Bill will be time limited. But, even after Brexit, we will find that the process of absorbing laws of external origin into the UK statute book will have to continue.

Unless the Westminster Parliament is to be bogged down with passing new laws, every time a new Codex standard is promulgated, or WP.29 modifies its technical specifications for tail-light clusters on vehicles, we are going to need something very like the ECA to allow ministers to keep our law books up to date.

The irony here is that, in the absence of the ECA, the Great Repeal Bill will be the next best thing. Even if it does become time-limited, there will have to be a follow-on law which does much the same thing.

That, of course, drives a cart and horse through the idea of "taking back control" and restoring Parliamentary sovereignty. In future, MPs will be no more interested in expending their life energy on such vital things as fine-tuning the requirements for aflatoxins in animal feed than they are at present.

To that extent, the "take back control" mantra is precisely that. Much of the technical legislation that used to find its way into Acts of Parliament are now routinely consigned to SIs, irrespective of their origin. They go through on the nod, with MPs taking little or no interest in them.

I simply cannot see this modern generation of MPs ploughing through such requirements at Committee Stage, arguing over dots and commas as their predecessors did, with Bills running to hundreds of pages. And, bluntly, most of them wouldn't be up to the job anyway.

When it comes to pass, therefore, rather than closing a chapter, the Great Repeal Bill will actually end up opening another one. What I have dubbed the "double coffin lid" phenomenon will come starkly into focus, where we shed EU "rules and regulations", only to discover that the same subjects are covered by international rules.

Nevertheless, that does not stop Davis asserting in his White Paper that: "As we bring powers back from Brussels, we will put them into the hands of democratically elected representatives in the United Kingdom". But as with so much to do with this Government's handling of Brexit, rhetoric and reality are very far apart.






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