Leaving the European Union will require major changes to the statute book. On 2 October 2016, the Prime Minister announced plans to introduce a “Great Repeal Bill” in the next Queen's Speech. The Great Repeal Bill has not yet been published. This paper considers issues likely to be raised in the Bill. It works on the basis of comments made by senior members of the Government (set out in Section 1).Jump to full report >>
The Government has announced that the Great Repeal Bill will repeal the European Communities Act 1972 (the ECA) and incorporate (transpose) European Union law into domestic law, “wherever practical”. The Government has indicated that these legal changes within the Bill would take effect on “Brexit Day”: the day the UK officially leaves the European Union (EU).
The Government has also stated that the Great Repeal Bill will contain delegated powers to enable the Government to adapt any laws on the statute book that originate from the EU so as to fit the UK’s new relationship with the EU. This may require major swathes of the statute book to be assessed to determine which laws will be able to function after Brexit day.
The House of Commons Library has estimated that 13.2% of UK primary and secondary legislation enacted between 1993 and 2004 was EU related. The review of all EU-related legislation, as well as that which will be transposed by the Great Repeal Bill, makes this potentially one of the largest legislative projects ever undertaken in the UK. It is not yet known when the legislative changes will be made to give effect to any withdrawal agreement made with the EU.
This briefing addresses each of these potential elements of the Great Repeal Bill:
Since the enactment of the ECA, EU law has been a major part of the UK’s constitutional and legal framework. EU law is currently incorporated into the UK’s legal system in a number of different ways. For example, the Treaties and EU Regulations are incorporated into domestic law by the ECA and are therefore directly applicable, whereas EU directives are implemented by Parliament through both primary and secondary legislation. This distinction between directly applicable EU law and EU law already implemented will have implications for the process of legislating for Brexit.
A question raised by the Great Repeal Bill is how much of the law which is currently directly applicable, for example EU Regulations and certain provisions in the Treaties, will be transposed into UK law.
The Government’s White Paper, The United Kingdom’s exit from and new partnership with the European Union, published in January 2017, stated that the aim of the Bill is “to ensure that all EU laws which are directly applicable in the UK (such as EU regulations) and all laws which have been made in the UK, in order to implement our obligations as a member of the EU, remain part of domestic law on the day we leave the EU".
As the High Court noted in Miller, the judicial review challenge on triggering Article 50, some EU law cannot be replicated in United Kingdom domestic law, for example the right to seek a reference from the CJEU. Further, some EU law rights might not be transposed for political reasons. Another important question is how transposition will be done, both in terms of the form of words used and whether this will be done using statutory powers delegated to ministers or on the face of the Bill (or in multiple Bills). The Government has stated that significant policy changes will be underpinned by primary rather than secondary legislation.
Repealing the ECA will not remove EU law’s influence on the statute book. Since the UK became a member of the EU in 1973, Parliament has enacted a significant amount of legislation to give effect to the UK’s obligations under the Treaties. Whilst the majority of this legislation will function effectively post-Brexit, some provisions may need to be amended, while others might need to be repealed altogether, such as the European Union Act 2011. The Great Repeal Bill might include on its face changes to such primary legislation. Equally the delegated powers included in the Bill might enable such changes to be made by Ministers pre and post Brexit.
The Government has indicated that the Great Repeal Bill will contain delegated powers enabling Ministers to make changes to the statute book to give effect to the outcome of the withdrawal negotiations. The Government may need powers to cover multiple scenarios. The powers may also be used to adapt legislation, enacted to give effect to the UK’s EU law obligations, so that it functions effectively post Brexit.
If the Great Repeal Bill contains delegated powers that enable Ministers to make changes to primary legislation (sometimes known as Henry VIII powers), it is likely there will be much scrutiny of:
Legislating for Brexit will have significant implications for Scotland, Wales and Northern Ireland.
If the Great Repeal Bill transposes all directly applicable EU law (leaving aside some items that cannot be carried over for logical reasons, as mentioned above) it could effectively implement a range of provisions that are within devolved competence (e.g. agriculture). This would require consent from the devolved legislatures, so long as the Sewel Convention is respected.
However, an alternative approach would be to restrict the Bill to reserved matters and leave the devolved legislatures to create their own continuation Bills.
If any delegated powers in the Bill enabled UK ministers to legislate in regard to devolved matters there would be concerns from the devolved governments and legislatures that the Sewel process might be circumvented. The requirement for consent from the devolved legislatures applies only to primary legislation. It might be possible to offset this by creating delegated powers that involve approval from both the UK Parliament and the devolved institutions, an approach that is used in some circumstances already. Alternatively, the delegated powers might be exercised by devolved ministers.
The Great Repeal Bill’s removal of the ECA from the statute book will mean that the UK courts will no longer, after Brexit, give primacy to EU law. The domestic courts will not be obliged to follow the judgments of the CJEU, nor will they be able to refer questions of EU law to the Luxembourg Court.
It is not yet known how the domestic courts’ approach to interpreting legislation giving effect to EU law might change after Brexit. The Government’s White Paper outlines that preserved EU law should “continue to be interpreted in the same way as it is at the moment”. The judgments of the CJEU, and EU law itself, could remain relevant to deciding cases on domestic legislation originating from EU law.
Commons Briefing papers CBP-7793
Author: Jack Simson Caird