Richard North, 14/07/2017  
 


It is rather predictable that the legacy media should turn the publication of the 66-page European Union (Withdrawal) Bill into a biff-bam match between Whitehall and the devolved administrations - the lurid headlines braying accusations of a "naked power grab".

This is a media which simply can't do detail any more. The fabulously wealthy BBC, with resources us mere mortals would die for, only manages 183 words of "analysis" on the Bill, half of which is given over to quotes from politicians.

The sometimes informative Reuters falls at the first fence, telling us that "the passage of the Bill through parliament could make or break Theresa May's future as prime minister".

Even the supposedly alternative media, such as Spiked does a dismal job - as Pete points out.

According to the BBC, the Bill "amounts to a giant exercise in cutting and pasting - taking the laws made in Brussels and that apply here, and turning them into UK law".

But the first and most important thing the Bill does is repeal the European Communities Act, the instrument which gives EU its force in the EU, and empowers the government to implement the full range of treaties, legislation and ECJ rulings. This is the law which sets us on the path to independence, removing the supremacy of EU law.

As to that "cut and paste" process, this is only one part of a process in what truly is complex, "under-the-bonnet" legislation. Detail can be found in the explanatory notes, where we see outlined the concept of "retained EU law", split into the two categories of "preserved" and "converted" legislation.

The former is the cut and paste job but, as I pointed out with this piece on converting the fishing acquis, this is only the start of it. Much of the EU law, as it stands, simply won't work in the UK context and will need to be converted, with substantial adaptations, in order to turn it into functioning legislation.

This is not simply a question of taking out the many references to "European Commission" and such like, and inserting appropriate replacements. In many instances, sentences, paragraphs and whole sections will have to be re-written before they can make any sense and, in the words of the Bill, function "appropriately and sensibly".

This is where the "power grab" supposedly lies, but it is hard to see how the government could do things any differently if we are to end up with a functioning statute book.

In fact, the real question is whether this can be done in the time. With the EU's legislative acquis running to just short of 20,000 instruments, there are hundreds of thousands of pages to be vetted – all of it obscure technical jargon – with perhaps millions of words to be re-written.

The greater problem, though, is that no amount of re-writing will solve the inherent problems. In an earlier piece, I pointed to post-independence experience in Ireland and India for precedents, where each administration simply adopted laws made while their countries were under British control, and carried on with them unchanged, until they had time and resources to bring out new laws.

But that process for some can be somewhat protracted, with a report in 2014 that India was still going through its statute book, weeding out archaic laws stemming from the Raj.

And if repatriating laws is a problem for India, it is far more complex for the UK, arising from the way the different sets of laws have been conceived and applied.

When the UK produced laws for India and the other colonies, they were most often produced by the Viceroy/governor general in India, and by governors in other territories. At state or subordinate level, you would also have law-making powers, by lieutenant-governors or some such. Even though they were made under British rule, they were still local laws, specific to the territories to which they applied.

With the EU, though, not only is the scale of legislation different, with massively more laws currently in force, it is also a rigidly centralised legislature intent on creating EU systems.

Unlike the British Empire, law-making is centralised, with the right of proposal reserved for the European Commission in Brussels. The completed law is then administered by the European Commission in Brussels, backed up by a single court in Luxembourg.

In this centralised EU system, EU law imposes a common system on all Member States which have to work together as part of a whole. When a Regulation is "done in Brussels" and enters into force, it applies immediately to all 28 Member States, having direct effect without any intervention from national legislatures.

The law that applies in one Member State simultaneously applies in all others. It is system-wide law aimed with the aim of integrating the Member States into a single administrative body.

That was never the case in Commonwealth and Empire. Law was made for each of the territories. Thus, law made for Australia would not apply to India, nor to South Africa - there was no Empire law, as such, a single body of law made in London which would apply to the UK and then equally and simultaneously to the rest of Empire.

Thus, in attempting to convert EU law when this Bill comes into force, the government is going to have great difficulty in separating out the functional aspects of the law and those dealing with the establishment of the EU systems, which are worked into the law. It will need to keep the one and remove the other. And that's not as easy as it looks.

As we've seen the fishing acquis, referred to earlier, where the core regulation does not just regulate fishermen but also sets up the Common Fisheries Policy, empowering the European Commission to perform certain functions, and imposing the duty of co-operation on (multiple) Member States.

Had the fisheries policy been written on the lines of Indian colonial legislation, it would have been framed by a "governor" based in London but appointed by Brussels, yet would have applied solely to UK waters. That we could have adopted, pro-temp, until we had something better. But the core legislation, Regulation 1380/2013, as it stands, is unusable without very substantial amendment.

I have pointed out similar problems with the Lift Directive. This is also dual-purpose regulation Not only does it legislate for lift safety, it is one of the "New Legislative Framework" package which sets up a Brussels-based system of control over a wide range of products. As such, once again, it empowers the Commission and places cooperative duties on Member States.

Other examples range from chemical regulation to Air Traffic Management, and there are many more. And so I was writing at the beginning of this year that the government had vastly under-estimated the complexities of repatriation. It was not at all geared up to dealing with the problems arising.

Yet, of this, not a word from the media. There is not the slightest hint from the massed ranks of hackery of stupendously challenging nature of the task ahead – rewriting legislation acquired over 44 years of EU membership, all in the space of less than two years, to be ready for the off in April 2019.

Months down the line, there are still no indications that the government has got the measure of the problems, or is in any way gearing up to meet the unique challenges presented. In effect, therefore, this Bill is a fiction. It is lining the government up to do something that cannot be done – something about as feasible as grooming unicorns.






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