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Brexit: flagship repeal bill launches but likely course still unclear

The HMS Brexit was like a modern day Mary Celeste as it set sail, having all the outward appearances of a great ship of state, but little sign of life below deck.

No fewer than four government papers were launched in the space of an hour on Thursday, including legislation once heralded as the “great repeal bill”, but now entitled the European Union (withdrawal) bill, to carry the country over the horizon to a land beyond membership.

For once, the grand parliamentary boilerplate appeared apt. “Be it enacted by the Queen’s most excellent majesty” begins perhaps the most significant constitutional document of her reign. “By and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same.”

Royal bottles duly smashed, anyone hoping for clues as to the ship’s course or likely destination will have been quickly disappointed. The bill’s very first line – “The European Communities Act 1972 is repealed on exit day” – makes clear even the date of departure is currently to be left blank.

As the EU’s chief Brexit negotiator, Michel Barnier, pointed out a day earlier, the clock is in fact ticking down to the legally-enforced exit day of 29 March 2019, by which point this giant legislative exercise in Westminster will have to have been long complete. “This bill means that we will be able to exit the European Union with maximum certainty,” insisted the Brexit secretary, David Davis.

Yet the date is not the only section left blank. Perhaps the most controversial aspect of the legislation is its so-called “Henry VIII powers” that grant the government executive power to amend existing legislation without further recourse to parliament. Though this is partly a time-saving exercise as acres of EU law are transposed on to the UK statute book, ministers admit ambiguity is also required because so many of the key features of Brexit remain unclear.

“The bill’s provisions are likely to be straightforward but controversial,” said Robert Bell, a legal expert at Bryan Cave LLP. “The most controversial element being those powers allowing ministers to fast-track the implementation of certain EU laws into domestic law through regulations without parliamentary debate.”

Converting all existing EU law also reflects the need to dodge politically-difficult questions about how much Brexit will eventually mean cutting away at this supposed Brussels red tape. Just in case there was not enough to give parliament something to fight over now, the only surprise was a decision to leave the EU charter of fundamental rights behind, thereby gifting Labour the thread it needed to pull on without looking obstructionist.

The other three government publications out on Thursday left even less clue over the likely battles to come. A position paper on nuclear materials and safeguards largely ducks the fierce row over what leaving Euratom will mean for Britain, merely acknowledging: “The UK is keen to discuss this as quickly as possible.”

“It is clear that the UK and the Euratom community have a strong mutual interest in ensuring close cooperation,” reads its Maybot-style conclusion. “There are a number of legal and contractual issues related to nuclear material in both the UK and EU, for which early resolution is important in providing the necessary legal certainty to operators and governments,” it adds delphically.

Another paper on ending the role of the European court of justice after Brexit takes a tougher line, but is spoilt by several references to the fact that a competing EU position “may well be right” too.

For now, the most significant feature of the government’s position papers and bill is that they exist. Despite the government being accused by the National Audit Office of a Brexit strategy that could fall apart at any minute, the ship sails on. Where to and with what purpose, remain a mystery.

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