The Great Repeal Bill: The law to end all (EU) laws

Plans have been announced to introduce a Great Repeal Bill. It could be called the Great Adoption Bill as its main purpose is to adopt EU law as…

The Prime Minister has announced plans to introduce a Great Repeal Bill (“the Bill”) in the next Queen’s Speech. Perhaps it should be called the Great Adoption Bill, as whilst it will repeal the European Communities Act 1972 (“the ECA”), the main purpose of the Bill will be to adopt European Union (“EU”) law as domestic law.

Details of the law which will be adopted on Brexit will be set out in the Bill; and/or the task will be delegated to Ministers.

Delegated powers

Once Article 50 is invoked, the UK may need to move quickly to make changes to be ready in time for Brexit day. Delegation of powers will facilitate this.

The Bill is likely to delegate authority to Ministers to make adjustments to our laws by statutory instrument in order to give effect to the outcome of the withdrawal negotiations.

The extent to which powers should be delegated will be controversial as such delegation may be seen to circumvent parliamentary sovereignty. This is the context for the Miller case, currently before the Supreme Court, the judgment on which is expected early in the New Year. It may be that delegated powers are drawn narrowly but in a broad range of areas. 

Devolved institutions

The Sewel Convention requires that Parliament may not pass primary legislation for devolved matters without the consent of the Scottish Parliament. Similar principles are expected to be applied to Wales, once the current Wales Bill becomes law.

If the Bill adopts all directly applicable EU law, it could essentially implement provisions which are within the remit of devolved administrations (e.g. agriculture and fishing). This would be controversial unless the consent of devolved administrations is obtained or the Bill leaves such matters for them to determine.

What will happen to EU laws?

Treaties and Regulations have direct effect in the UK by virtue of section 2(1) ECA. These will cease to have effect upon repeal of the ECA but will be converted into UK law with effect from the Brexit date.

Some provisions of the Treaties and Regulations have already been implemented by domestic law and will not need to be converted (e.g. Equality Act 2010).

Secondary legislation which implemented directives under the section 2(2) ECA power will cease to be legally valid upon repeal of the ECA. EU law implemented otherwise than under section 2(2) will continue in force and will not need to be “saved” upon repeal of the ECA.

Directly applicable laws may or may not need to be adopted to apply post-Brexit, may be adopted partially, or will not be capable of being adopted e.g. referring a case to the ECJ.

Practical issues may arise where the laws refer to, or depend on, the existence of EU institutions. Some UK primary legislation may need to be adapted to the extent that it cross-refers to EU legislation.

The Courts

One of the aims of the Bill is to end the jurisdiction of the Court of Justice of the EU (“CJEU”) over the UK.

EU law will no longer be given primacy and domestic courts will not be obliged to abide by rulings of the CJEU. However, the changing status of EU law will not necessarily end the influence of the CJEU in domestic courts. A large amount of primary and secondary legislation originating from EU law could remain on the statute book and it is likely that domestic courts will continue to refer to judgments of the CJEU to guide the interpretation of legislation.

Against this, the UK courts may look behind the purpose of a law originally enacted as EU law, and decide that such purpose has no relevance in the UK.

Conclusions

The main arguments in favour of the Bill are that: 

  • it will give businesses certainty over the continued application of EU law, at least in the initial period post Brexit;
  • in principle, it should be a relatively easy way of dealing with the transition to domestic sovereignty; and
  • it will enable us to remove EU laws that we don’t like, albeit subject to the requirements of any trade deal that we conclude with the EU.

As should be apparent from this article, there are counter arguments which could be made in each case. The preparation and passage of the Bill will not be straightforward and there are likely to be issues still to resolve long after its introduction.

If you are interested in finding out more about this or any other Commercial issue, please contact Vincent King, a partner in the corporate department, on 0161 214 0653 or email Vincent.king@weightmans.com.

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