Legislating for Brexit: EU directives
What are EU directives and what will happen to them when the UK leaves the EU? This paper looks at EU directives in force and how they are implemented in the UK. This will give some idea of the task ahead for UK legislators.
According to the EU’s Eur-lex database, there are at present around 19,000 EU legislative acts in force. These are mainly directives, regulations, decisions and external agreements, but they include other instruments, such as resolutions, reports, rules of procedure, guidelines, declarations, inter-institutional and internal agreements, programmes, opinions, communications, conclusions and statutes.
Of these, in December 2016 there were nearly 900 Directives in force, almost all of which apply to the UK.
EU directivesThis paper considers EU directives and lists EU directives in force, linking them to implementing measures in the UK, and to some extent the devolved administrations and Gibraltar.
The powers of the European Communities Act 1972Section 2(2) of the European Communities Act 1972 (ECA) provides a power for subordinate legislation to be made where the EU Treaties require Member States to make provisions in their domestic law, such as for the implementation of directives.
The ECA also provides that other powers to adopt subordinate legislation in other Acts are interpreted as enabling them to be used to implement EU obligations.
Statutory Instruments to implement EU lawMost EU directives and a small number of EU regulations and decisions are implemented in the UK by Statutory Instrument (SI) under the authority of the ECA - the majority - or another enabling Act. Some EU directives are implemented by primary legislation (Act of Parliament).
The Great Repeal Bill will provide for EU-based SIs to continue in UK law where practicableThe aim of the proposed Great Repeal Bill will be to ‘convert’ the EU acquis into UK law, so that the Government and Parliament can then decide what to do with them as UK, not EU, measures. So most SIs implementing EU directives will continue in force on Brexit day.
UK Acts of Parliament implementing EU law may have to be amendedEU directives that are implemented by statute will already be enshrined in UK law but the relevant Acts of Parliament might need to be amended if they provide explicitly that they are based on EU law.
Other Library papers on the EU acquis and the Great Repeal BillThe repeal and conversion process is discussed in Commons Briefing Paper 7793, Legislating for Brexit: the Great Repeal Bill, February 2017.
Briefing Paper 7867, Legislating for Brexit: Statutory Instruments implementing EU law, 16 January 2017, looks at UK secondary legislation which implements EU directives and other EU acts which are not directly applicable.
Briefing Paper 7863, Legislating for Brexit: directly applicable EU law, 12 January 2017, looks at EU regulations, which will cease to have effect in the UK if the ECA is simply repealed without a saving provision, pending decisions on their future status.
Briefing Paper 7850, Legislating for Brexit: EU external agreements, 5 January 2017, looks at the EU’s external agreements, stating whether they are exclusive EU competence or mixed competence agreements.