'Great repeal bill' will create sweeping powers to change laws for Brexit

Peter Walker and Heather Stewart
David Davis said the new powers would be temporary and aimed at ensuring a smooth exit from the EU. Photograph: Daniel Leal-Olivas/AFP/Getty Images

Government plans to create temporary powers to let ministers amend thousands of laws in the wake of Brexit have been condemned as a “sweeping” executive power grab, despite David Davis insisting any such changes would be technical.

Introducing a white paper setting out plans to transfer thousands of EU regulations into UK legislation, the Brexit secretary said any substantive policy issues would be dealt with by new laws scrutinised by parliament.

However, Davis said, there was a need for further steps “to provide a smooth and orderly exit” because a large number of laws would not work properly after Brexit, for example, those that made use of EU institutions of which the UK might no longer be a member.

The government’s planned “great repeal bill” – it will have a different official name as value-laden terms such as “great” are not permitted in legislative titles – would grant ministers powers to make many of these changes without the approval of MPs, Davis said.

This use of secondary legislation powers would “help make sure we have put in place the necessary corrections before the day we leave the EU”, he told the Commons, adding that any such powers would be time-limited. “Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance to be struck between the importance of scrutiny and correcting the statute book in time.”

The announcement prompted concern from Labour and the Liberal Democrats, as well as a warning from Nicola Sturgeon that Scotland could face a “power grab” if areas returned from Brussels were not fully devolved.

The shadow Brexit secretary, Keir Starmer, said the proposed bill gave sweeping powers to the executive to change regulations. “Sweeping, because it proposes a power to use a delegated legislation to correct and thus change primary legislation, and also devolved legislation,” he told MPs. “Sweeping because of the sheer scale of the exercise.”

Starmer added: “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.”

He said that Davis had to “face down” calls from fellow Conservative MPs for rights covering employment and other areas to be watered down, and guarantee that any changes to protections be introduced via primary legislation in parliament.

Davis said he could give this guarantee: “Let me reiterate – the use of delegated legislation will be for technical changes.”

The Lib Dem MP Tom Brake said the plans left Theresa May’s government “resembling a medieval court”. He added: “This shameless power grab under the cloak of secondary legislation would have made Henry VIII blush.”

Speaking at first minister’s questions at Holyrood, Sturgeon said the issue for her was whether the repeal bill would mean powers repatriated from Brussels, covering, for instance, agriculture and fishing, being fully devolved.

May’s ministers had been unable to guarantee this, Sturgeon said. She said it led her “to suspect that what the Tories are actually planning is a power grab on this parliament, and that will be absolutely unacceptable”.

What seems clear is that much is still to be determined over how the transfer and possible amendment of EU regulations will happen. The white paper confirms the government will pass a series of other bills in the two years before Brexit on subjects including customs and immigration.

Starmer said the scope of the white paper was narrower than he had expected, but that ministers seemed to be planning as many as 12 or 13 bills on substantive policy issues. “It’s very thin, but a lot is going to spin off it,” he said.

Even Davis appeared uncertain on some issues. Answering a question from the Labour MP Kevin Brennan, the Brexit secretary said it was “quite likely” MPs would get a specific vote on any decision to pull the UK out of the European Economic Area (EEA), the wider EU-based free trade region.

However, his own department later corrected this, saying that because leaving the EEA was integral to leaving the EU, they did “not envisage a vote”.

There are also questions about how far seemingly technical changes made by secondary legislation could stray into more substantive areas.

Anand Menon, an EU expert at Kings College, London, said it was wrong to suggest the powers envisaged in the bill could be used merely for technical tweaks. Where existing law referred to an EU institution, for example, there were “political choices to be made about what to replace it with”. He said: “It isn’t simply cut and paste.”

The white paper says that while there are no plans to pull the UK out of the European convention on human rights, the EU’s charter of fundamental rights will not be converted into UK law. The paper says this change will not affect individuals’ “substantive rights”. But the campaign group Liberty said the plan left “gaping holes where our rights should be”.

The campaigner Gina Miller, who successfully took the government to court over its plans to trigger Brexit without parliamentary approval, said she was considering legal action to challenge the use of so-called “Henry VIII powers” that would be given to ministers to alter individuals’ rights.

She told BBC Radio 5 Live Daily: “The government has already blotted its copybook by trying to bypass parliament and use the royal prerogative, so if there is any sniff that they are trying to use Henry VIII powers, that would be profoundly unparliamentary and [un]democratic, and I would seek legal advice, because what you are doing is setting a precedent that government could bypass parliament.”

Davis was later named as one of the members of a high-level cabinet sub-committee which will oversee the Brexit negotiations. However, in what could be seen as a snub, Liam Fox, the international trade secretary, is not part of the group, despite trade being part of its remit.

The European Union exit and trade (negotiations) sub-committee comprises May, the chancellor, Philip Hammond, the home secretary, Amber Rudd, Davis, and the foreign secretary, Boris Johnson.

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