The UK’s constitution has always been the elephant in the room, mainly due to the fact it doesn’t exist as a single document. However, with the Prime Minister due to trigger Article 50 imminently, politicians will have to take a long look at our laws and conventions.
Hang on, what? There’s no written constitution?
Nope. A constitution is a set of fundamental principles that set out how a country is governed. In America, the constitution is set down in one specific document. In the UK, however, different parts of our constitution originate from different moments in history. Some of it comes from laws passed by Parliament, some from court judgments. Other bits are ‘unwritten’ conventions.
What’s Brexit got to do with any of this?
By triggering Article 50, Theresa May will officially start the process of Britain leaving the European Union. She’ll also be revealing a White Paper – basically a set of proposals – for the Great Repeal Bill.
The Great Repeal Bill will spell out how we will go about leaving the European Union, and how we will convert the bits of EU law we want to keep into UK law.
Many of our laws come from Parliament, where proposed bills are voted on in the House of Commons and House of Lords, or in the form of secondary legislation. However, much of our law comes from various parts of the European Union. Employment rights such as maternity pay, for example, are protections given to us by European Union laws.
Converting EU laws into the British system is going to be one of the biggest constitutional challenges ever. And the Government will only have two years in which to do it.
Did someone say controversy?
As always, there are a number of different arguments about how to unpick this political challenge.
Leaving the EU will be a massive task, with Parliament estimating there are 33 different European institutions that add to UK law, covering everything from fisheries and law enforcement to medicine and food safety. This means that the Government will be hard-pressed to fit in all that law conversion into just two years.
For this reason, there’s been a big focus on how much power The Great Repeal Bill will give the Government to push laws without Parliament’s approval. An earlier White Paper on Brexit suggested they would use secondary legislation, which is not scrutinised in the same way as primary legislation. There has also been talk of Henry VIII clauses, which allow the Government to amend laws without Parliamentary consideration.
The Government say this is all to do with timing, with one source quoted as saying they “would be converting EU law into British law forever otherwise.” However, another view is that heavy use of secondary legislation or Henry VIII clauses would be a significant shift in our constitution – the law-making power would move more to the Government than Parliament.
The Lords Constitution Committee has expressed serious concerns about all this, with the Committee’s chairman, Lord Lang, saying that, “Scrutiny must not be sidelined.”
So, where next then?
Firstly, it’s worth noting the Government could include some safeguards in the Great Repeal Bill. They are likely to propose rules that cap the power to use secondary legislation to push laws through unchecked – something could pacify some opponents. They could do this in several different ways:
- Legal Safeguards: By setting out the scope of their powers clearly, Parliament would be able to hold the Government to account if they failed to abide by the rules.
- Substantive Safeguards: This would be a way of safeguarding certain areas of law that the Government believes are important. For example, they could say that no secondary legislation could be made that would change or affect workers’ rights.
- Procedural Safeguards: The Government could also include ways of allowing Parliament to scrutinise some secondary legislation if it deems it to raise bigger issues.
However, the Bill is still likely to be hotly debated in Parliament, and is undoubtably one of the biggest constitutional shake-ups in decades. Perhaps ever.