waz-24-7 wrote:The task to prepare UK NEW legislation is immense. Understandably there is proposal to a deal of cut and paste of EU law.
As the UK intends to continue to trade with the Union then it will surely be obliged to meet regulations and legislation allowing UK products to be sold and used within the Union. As for UK legislative law. I envisage a great deal of lobbying and opposition to government proposals, particularly for legislation that will effect business, employment law, working hour directives, and a multitude of others.
Of course Brexiteers want exactly this liberty to change and write laws that are governed by UK law makers. The mandate awarded to UK government
is rather concerning as is the mandate to secure a deal. Are we heading for a totalitarian government who are capitalising on the Brexit mandate to ensure they remain in power ongoing. Certainly the government can do no wrong by public Brexit support. Bizarre situation given that almost all were against divorce from the Union..
The body that amends laws, repeals laws or passes new laws in the UK is parliament, not government. That is the way it has been since parliament took over that sovereignty from our Kings and Queens some 500 odd years ago. The mandate given to governments in general elections is not a mandate to pass, repeal or amend any laws they see fit, It is a mandate to draft laws or amendments to laws or repeal of laws and present these to parliament, both the House of Commons and the House of Lords. who then vote on such things, democratically. Such is the fundamental core of British parliamentary democracy. Certainly a government with a large majority in both houses, something this current government does not have, can be expected to be able to get the majority of it's laws, amendments and repeals passed by parliament but even then there is an inherent 'check and balance' in terms of the practical limit in time as too how many such laws, amendments and repeals can be pushed through parliament before said government has to again put itself up to the people for election.
We can not just repeal all laws made since the UK joined the EU, for that would leave an untenable gaping hole in UK legislation.
Nor can we just 'copy and paste' the current laws made in the last 40 years and then amend them later at our leisure and in the normal way. If we could then that would be an easy solution to the problem but we can not do this because these laws explicitly make reference to EU and the primacy of EU bodies, laws and directives in specific areas and under specific circumstances.
To take just one example of one section of one act passed in the last 40 years, that I happen to have some prior knowledge of, the section that details how the regulator OFCOM determines if a telecoms company has or does not have SMP (significant market power), of the
Communications Act 2003. This section of this act details how it is to be determined if an entity does or does not have SMP (significant market power) - it is to be determined "in accordance with any applicable provisions of Article 14 of the (EU) Framework Directive". It then goes on to state that if OFCOM make a market power determination and the EU Commission, in accordance with Article 7(4) of the Framework Directive, consider that "giving effect to the proposal would create a barrier in relation to the single European market, or that the Commission has serious doubts as to whether giving effect to the proposal would be compatible with the requirements of any Community obligations," then OFCOM "must withdraw it; and shall not be entitled to give effect to it."
To just 'copy and paste' this law as it exists now would simply render it meaningless in an environment where the UK has left the EU. It HAS to be changed for it to have any meaning or legal validity and enforceability. It can not simply be 'copied and pasted'.
So one way this law could be amended would be to maintain the 'intent' of it as it exists currently, to maintain the principal that certain markets are by their nature susceptible to 'natural monopolies' and that there should therefore be defined criteria for how OFCOM determines if a telecoms entity has SMP that is not dependent on EU directives and to remove the section giving the EU Commission the right to 'over rule' such a determination. Such an amendment would make the legislation compatible with and valid in a post Brexit UK but maintain its original intent and purpose and by extension the effect it has on people.
Another way to amend it, if the Repeal Act as it is currently written were passed, would be for the relevant Minister, or in practical reality a faceless unelected civil servant, to simply decide that the very idea of SMP was 'silly' and just remove sections of this law that deal with SMP within telecoms entirely and in the process fundamentally change the intent of this part of this law and the effect it has on the lives of ordinary people.
You may think that the law is 'silly' and removing it would not have any effect on the lives of ordinary people in the UK but you would be wrong in that regard in my opinion. OFCOM has just recently forced BT to separate its 'network infrastructure' operations (BT Openreach) from its retail services operations (BT Retail) into separate companies, with the hope and intention that such will in turn lead to a more competitive broadband provision market and cheaper broadband prices for millions of ordinary UK citizens and business. OFCOM was only able to do this
because of the laws that first allowed it to determine that BT had SMP in this area. Without these laws with regard to determining SMP they would not be able to require this of BT.
The Repeal Bill, as it is currently laid out, is asking Parliament to pre approve the granting of this power to change such legislation, not just for this one act, but for 100's if not 1000's of acts passed over the last 40 years, without any specification as to which acts are covered or any defining limits on why changes are to be made and simply trust that the Minister (which in practical terms will means in most cases faceless un elected civil servants) will not choose the second option as laid out above (deciding that the very concept of SMP in telecoms is 'silly' and removing it entirely).
To me in essence it is saying that in order to 'most quickly' reverse 40 years of partial loss of sovereignty to the EU that membership of it entailed, and that was originally granted to the EU via normal Parliamentary process and democratic vote, we should scrap 500 years of the fundamental sovereignty of Parliament in regards to 40 years worth of legislation and instead vest such power in 'here today gone tomorrow' Ministers or in 'here for life' un elected civil servants. That to me is beyond cutting of our nose to spite our face or throwing the baby out with the bath water.
So what do I think should be done ? What kind of Repeal Bill would I like to see instead ? I think the Repeal Bill has to state within it that any amendment or removal of existing legislation that is to be done outside of all parliamentary norms must be done with the sole intention and aim of, as far as is possible, maintaining the the original intent and purpose of the legislation and the effect it has on people whilst making it compatible with the UK being outside of the EU. As far as this current government seeks to use the 'opportunity' of Brexit to change the intent and purpose and effect of it on people's lives of specific current legislation or parts of it, as it exist today, then they must gain explicit Parliamentary approval for such, either by detailing which laws will be so affected within the repeal bill itself or wait a bit until they can subsequently change such laws via normal Parliamentary process, after they have first been amended using the 'no change in intent' criteria.
Even then the task will be herculean, will require larger numbers of 'new' Civil Servants (maybe on zero hour contracts perhaps ?), may well require an additional 'transition period' beyond the initial two years and possibly, heaven forbid, require MP's and Lords to work harder and longer for a period of time than they are used too (reduction or even removal of the various parliamentary 'recess' periods perhaps ?) Yes such an approach would probably take 'longer' but to me taking slightly longer or even significantly longer is way less of a 'cost' and compromise than just granting current Ministers unprecedented (in 500 years of precedent) legislative powers over 40 years worth of UK legislation and 'trusting' they will not abuse or exploit such unprecedented powers.
As they say, well kind of, 'power corrupts, unprecedented power corrupts to an unprecedented degree'.