Guns of Brexit

Getting the Repeal Bill through Parliament is only the start of the fun and games over Brexit.

The knife-edge majority for the Government in the House of Commons is bad enough.

But when the Repeal (Misnomer) Bill gets to the House of Lords, the safe passage of the Government’s Brexit vision will come under even more sustained attack.

Ministers have not made their task any easier by creating a Brexit ‘state of emergency’ vibe in the Bill by seeking to abrogate to themselves sweeping powers to do pretty much anything they like to ‘tidy up’ legislative loose ends, without much reference to anybody.

One person’s tidying up is another person’s tyranny, and we should expect the Upper House, loaded with Lib Dems, constitutionalists and lawyers as it is, to take deep exception to the power grab. The draft law is going to get a rough ride.

The Salisbury Convention, which binds Peers to bow to anything in the governing party’s manifesto, is looking pretty irrelevant after the mauling the Conservative’s prospectus got on 8 June. That, of course, does not extend to Brexit, covered as it was by the 2016 referendum, but the debate over the terms of the departure will rage.

But it is not just Parliament’s say-so that will enmesh progress against the sainted goal of a pure and unblemished leaving. As everyone knows, the Repeal Bill is really a Transposition Bill that migrates EU laws to our domestic canon (in fact Directives are already nationally implemented through secondary legislation, whereas it is Regulations that currently have direct effect that will need ‘reading-in’ to our domestic law books.)

That job done, Ministers will need to retain, vary or repeal the estimated 12,000 laws. Each will have its own significant effects on people and businesses in the UK. The Government will be duty bound to consult on what it intends, and a failure to do so is justiciable through judicial review.

So if the lobbyists do not spike the guns of Brexit in Westminster, we can expect a conveyor belt of work for London’s many skilled public lawyers down the road at the Royal Courts of Justice in the Strand, as their clients might quite rightly want to test whether Ministers have acted rationally and reasonably in their decisions over the post-departure regulatory settlement.