The Great Repeal Bill

Speeches by the Prime Minister at the recent Conservative Party Conference have provided some further details in relation to the Brexit process.

Speeches by the Prime Minister at the recent Conservative Party Conference have provided some further details in relation to the Brexit process. It has been confirmed that Article 50 of the Treaty of Lisbon, the formal mechanism signaling the UK’s intention to leave the EU, will be triggered by the end of March 2017. The negotiation process (without an extension agreed by all EU members) can take up to two years. Notwithstanding the legal challenge to the application of the Royal Prerogative to trigger of Article 50 (due to be heard on 13th of October), the UK could leave the EU by the end of March 2019.  

The Prime Minister has also announced the ‘Great Repeal Bill’ (“the Bill”) which will feature in the Queen’s speech in spring 2017. The Bill will be the legal mechanism for repealing the European Communities Act 1972 ending the supremacy of EU law over UK law. It will also remove the jurisdiction of the Court of Justice of the European Union in the UK. It is unlikely that the Bill will be able to be brought into force until the UK has actually left the EU, as the UK must comply with all treaty obligations until Brexit is complete.

The intention is for the Bill to encompass all EU laws that are in force as of the moment the UK leaves the EU, within domestic legislation. This would appear to seek to preserve the status quo whilst promoting legal certainty and preventing a legislative vacuum, and allows the government to focus their resources on the exit negotiations. Once the UK has actually left the EU, Parliament will then have the necessary time to properly review and scrutinise the circa 50,000 pieces of EU legislation and determine those which need to be unpicked, whilst understanding the risks and implications of doing so.  It is anticipated that the Bill will allow for such changes to be made by secondary legislation, by the adoption of a so called Henry VIII clause. 

The Bill will have to pass through both houses of Parliament and whilst this may be less problematic in the Commons given the Government majority, the Bill may not have such an easy passage through the Lords. Michael Russell, the Scottish Brexit Minister has stated ‘[t]his Great Repeal Act will require the approval of the Scottish parliament - a legislative consent motion will be required’. Whether the Scottish Parliament can veto the Bill remains to be seen, but it is evident that the Bill is likely to involve devolved matters such as agriculture and fishing, and countries within the UK intend to have their voices heard.  

There are several issues that will need to be considered when the Bill is prepared which include:

1. External EU agencies

What happens in the situation where an external EU agency or body has decision making and enforcement powers that have legal effect within EU states? Whilst it appears that such powers will be brought back within UK control, this begs the question who will assume these powers? Will they be politicised or will the UK create new (autonomous) agencies to oversee that function?

One such example is the European Medicines Agency (‘EMA’), based in London, which protects public health by ensuring all medicines available in the EU are safe. Setting up a UK version is unlikely to happen overnight so until there is a UK equivalent, will the UK agree to be bound by decisions of the EMA? Once there is a UK equivalent, it is likely that there will need to be steps to ensure mutual recognition so that drugs manufactured in the UK can still be sold in the EU without being subject to two separate agencies, something which is likely to increase the costs of manufacturing and the price the drugs can be sold for.

2. Will the UK need to keep up to date with any amended EU law?

What happens if, once the UK has exited the EU, the EU amends their laws which have been incorporated into UK law? Will the UK continue to follow the ‘old’ version, as this will be the one implemented in the UK by the Bill, or will the Bill build in some mechanism for updating UK law to include any future amendments?

If the Bill contains some automatic update provision would this be contrary to the intention of Brexit as the EU will still have some decision making powers over UK law? The UK would be unable to influence such decision making powers as they will no longer be a member of the EU.  However, if there is no automatic update the situation may arise that policy and law makers will need to set aside resources for the foreseeable future to ensure that certain pieces of EU legislation enshrined within UK law continue to be updated where appropriate in order to continue to trade or continue business in the EU.  

What is apparent is that although the Bill may be a short piece of legislation, the ramifications will be significant and far reaching, making the task for those drafting the Bill far from straightforward.

Kurt Rowe is an Associate in the Market Affairs Group and Dr Catriona Wolfenden is a Solicitor and Professional Support Lawyer. To discuss any of the issues in this update please email brexit.group@weightmans.com.

Share on Twitter