The Great Repeal Bill - creating certainty in an uncertain world

04 April 2017


On 16 March 2017, the European Union (Notification of Withdrawal) Act 2017 gave the Prime Minister the power to trigger the Brexit process by giving notice under Article 50(2) of the UK's intention to leave the EU. On 29 March, less than two weeks later, the Prime Minister sent a letter to the European Council providing that notification.

The next day, the government published its White Paper on the Great Repeal Bill. The timing of the White Paper is important as it seeks to ensure that the wider uncertainty generated by the commencement of the Article 50 process is mitigated to some extent by the continuity post-Brexit of the laws with which businesses are presently required to comply.

There will be no 'cliff edge', at least with respect to the UK's domestic legal framework.

We examine the proposals set out in the White Paper, including the powers that the government is seeking through the Great Repeal Bill and the role of Parliament and the devolved administrations.

The Great Repeal Bill

Despite its title, only one of the key effects of the Great Repeal Bill will be to repeal any existing UK law - at least directly. The Bill will seek to do three main things -

  1. to repeal the European Communities Act 1972 - the legislation which gives EU law domestic effect in the UK;
  2. to convert EU law as it stands at the moment of Brexit into UK law; and
  3. to empower the government to amend laws of EU origin to ensure that it functions correctly post-Brexit and that it reflects the terms of any withdrawal agreement negotiated with the EU.

Avoiding a legal black hole

As a member of the EU, some laws made in Brussels are directly effective in the UK without the need for domestic implementation. The White Paper refers to estimates that there are some 12,000 such directly effective laws currently in force, covering a wide range of issues.

Once it leaves the EU, those laws will no longer have effect in the UK and - given their number - there is no prospect that domestic equivalents could be enacted prior to Brexit. Businesses, workers and consumers need to know, in advance, what the UK's laws will be on the day after Brexit.

The government's plan to convert EU law into domestic law at the moment of exit is the only sensible way to avoid leaving a large hole in the UK's post-Brexit legal framework and to provide much needed legal certainty.

Amendments to EU-derived laws

Although the Great Repeal Bill will enshrine existing EU laws in UK law, not all of those laws will operate effectively post Brexit, and some will be redundant. The same is true of some laws that the UK has itself enacted to give effect to EU requirements. This is because those bodies of law were drafted on the basis that the UK was a member of the EU. For example, some contain references to EU regulators which will no longer have jurisdiction over the UK, and others bestow EU-wide individual rights that will no longer hold (such as free movement).

The Great Repeal Bill will seek to grant the government a time-limited power to amend the corpus of EU-derived law to ensure that it operates effectively post-Brexit. This will be done through differing forms of secondary legislation, which will allow a greater or lesser degree of scrutiny by Parliament depending on the importance of each particular issue.

Although the granting of powers to government to 'correct the statute book' prior to Brexit is the only practicable solution, the degree of oversight exercised by Parliament is likely to be a focus of debate. The White Paper does not suggest on what basis different forms of secondary legislation will be required in respect of different issues beyond stating that the greater scrutiny afforded by the affirmative resolution procedure may be appropriate for 'more substantive changes'.

Another likely source of debate will be the degree to which any particular amendment is purely corrective, as opposed to an amendment to reflect UK policy in areas where the EU previously had competence.

The White Paper confirms that the Great Repeal Bill will not empower the government to make policy changes to EU-derived laws and that it will be for Parliament to make such amendments. That confirmation is to be welcomed. However, it is likely that the dividing line between a correction and a change on the basis of policy may not always be clear.

This is particularly so with respect to the powers that the government will seek to allow it to amend the domestic legal framework to give effect to commitments made as part of any deal in relation to the UK's future trading relationship with the EU. It is likely that some of those amendments will require some degree of policy-making.

How will the Courts interpret EU-derived laws?

In order to assist with legal certainty, the Great Repeal Bill will require UK judges to interpret EU-derived laws in the same way as before Brexit. That means that such laws will be interpreted using EU rules of interpretation (which in some cases are different from domestic rules) and with reference to decisions by the EU courts up until the day that the UK leaves the EU. Those decisions will be given the same status as decisions from the UK's Supreme Court, and the Supreme Court can depart from them where it considers it right to do so.

However, no longer will UK courts refer questions as to how laws should be interpreted to the Court of Justice of the EU, and - subject to the terms of our eventual deal with the EU - the UK will not be required to keep pace with changes in how laws are interpreted in the EU going forward. Further, the White Paper states that where there is a conflict between any law converted into UK law by the Great Repeal Bill and any new primary legislation passed by Parliament after the UK's exit from the EU, the new legislation will take precedence.

As the White Paper puts it, this 'will end the general supremacy of EU law'.

Devolved institutions

Some legislation made at devolved level will need to be corrected so as to operate effectively post-Brexit. Devolved ministers will be given similar powers to their counterparts at Westminster to correct the parts of the statute book for which they are responsible.

However, beyond this the White Paper is relatively unclear on the powers that will be given to the devolved institutions post-Brexit. Currently, the devolved administrations and legislatures are responsible for implementing policy set at EU level in areas such as agriculture, the environment and transport.

On the one hand, the White Paper states that the government expects there to be 'a significant increase in the decision-making power of each devolved administration.' However, it also indicates that some repatriated powers will be retained centrally 'to ensure that stability and certainty is not compromised' and to maintain the effectiveness of the single UK market.

To the extent that this means that some devolved competencies will be removed, this will require amendments to the legislation underpinning the devolution settlements in Scotland, Wales and Northern Ireland. Such a move would prove incredibly controversial, not least in Scotland where Nicola Sturgeon responded to the White Paper with a warning that she would resist any 'power grab' by Westminster. Depending on how the devolution issue is dealt with in the Great Repeal Bill, consent may be sought from the devolved legislatures for any amendments to their underpinning legislation. Although the devolved institutions cannot legally block amendments to their competencies, withholding consent to such amendments may bring political pressure to bear.

The message for businesses

The Great Repeal Bill will be one of a number of pieces of primary legislation brought forward prior to Brexit. Others are likely to include Acts of Parliament to deal with issues such as trade and customs, immigration, tax, agriculture and data protection.

However, the message from the government is intended to be one of relative continuity and stability with respect to the UK's legal framework. Businesses are likely to be subject to the same laws on the day after Brexit as they were previously, and although the names of some regulators will be changed where they are replaced at the domestic level, the requirements they police will be largely the same.

We will then see a process of piece-meal change over the years following Brexit where the UK decides to follow new policies in areas which are at present colonised by EU law. Any such changes will, of course, need to be made within the parameters afforded by any agreement with the EU on future trade, and indeed any other such deals with non-EU countries.

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