Thread by @Panda_Chronicle

#BrexitFreedomsBill

EU law is retained under EUWA 2018, debated ad nauseam in Parlt

It gave Mins power to remedy legal defects

Parlt of course has power to legislate to change EU law

New Act likely to give Mins power to remove reg burden by Order

Order = scant Parly process

https://twitter.com/mdouganlpool/status/1488202524364529665

To expand slightly.

We don't know exactly what the Bill will include.

gov.uk/government/new…

But one likely content is an Order-making power to alleviate regulatory burdens.

(HMG has itself imposed reg burdens of immense scale!)

HMG press release cites a special status

for retained EU law. This is technically correct, but overstated (a subject for another day). David Davis created this status in his EUWA 2018, which was passed to avoid a legislative vacuum.

It rolled over all EU law & included powers to change it if it would be defective after leaving. EUWA also recognised the self-evident fact that UK Parlt can change EU law (EUWA, s7). (Though obvs in line with international obligs inc TCA/WA).

What's the difference

between using Parliament's ordinary legislative power to change EU law by Act, and creating a new Order-making power for Ministers? Well, one, a bit of showmanship and headline-grabbing.

But, two, Orders (SIs) go through a different

parliamentary process (actually one of two processes). They have either to be approved by both Houses, or to lay before Parlt for 40 days without being voted down. These processes usually involve committees, but an Order can be debated on the floor of the House. So? Well ...

A *Bill* has four substantive stages in each House. An SI only has one. If debated in the Commons, an SI gets a maximum of 90 mins debate, and, crucially, it can't be amended.

Non-Govt amendments are rarely made to Bills. But they allow debate which sometimes leads to Govt amdts

in response. This is one of the most useful things that happens in the two Houses.

Govts use the fact that SIs can't be amended to raise the stakes against rebellion. Do you really want to defeat us outright?

SIs are almost never defeated in either House. Last time in HoC was

1979. It's more common in HoL, but still only five times this century. Bills, on the other hand, while also v v rarely defeated, do get amended, often by the Govt in response to concerns raised during the various stages of

debate.

So, if a regulatory burden is "fill out three forms" and Min replaces it with one, well and good. But if the burden is the length of a shift between breaks, and the Min increases it from 11 hours to 14, not so well and not at all good. Debate on a Bill might well

apply pressure over something like that, and one could imagine a compromise amendment being offered by Govt.

Orders have their place, but only for genuinely technical matters.

When the Bill is published, look for the details.

(Btw, that Govt press release is contentious

and another example of dubious politicking in the guise of public information. Presenting negotiated common rules for mutual benefit as messy compromises is laughable propaganda for a public actually living through the #BrexitChaos of leaving them!)

#BrexitFreedomsBill

For those interested:

The "special status" of EU law was created by HMG in response to concerns from HoL Constitution Cttee. It asked, would retained EU law be primary or secondary? HMG amended EUWA 2018 so that this retained EU law kept existing status. This has implications

for how retained EU law can be amended and whether it can be challenged in Court.

Those bits considered primary can be amended only by other primary leg (Acts) or secondary leg that specifically can do so (Henry VIII powers).

They can be challenged in Court only on v narrow grounds. Those bits of retained EU law considered secondary can be amended by primary and any secondary leg, and can be challenged in Court in normal way.

This "special status" is really just a "clarified status".

As to potential

difficulty of amending things by statute, HMG expressly addressed this. Constitution Cttee wanted all EU law to become primary; HMG rejected as this would make it cumbersome to modify and could thus derail any shadowing of EU law then envisaged.

So to moan about "special status" is to admit yet again that they got it wrong. But bear in mind, secondary powers during EU membership were drafted with the limitation imposed by EU law in mind. Had, eg, all retained law been open to change by Order, a massive increase in powers

would have occurred. That's why so much retained EU law is regarded as primary. To give Parliament a full say in changing it.

The "special status" is smoke and mirrors for a potentially massive expansion of Executive power.

See p31-
researchbriefings.files.parliament.uk/documents/LLN-…

#BrexitFreedomsBill