Legislating for Brexit: the Great Repeal Bill

This paper was published before the Government introduced its European Union (Withdrawal Bill). Please see the Commons Library Briefing Paper on the Bill.

In October 2016, the Prime Minister announced plans to introduce a “Great Repeal Bill” in the next Queen's Speech, which will repeal the European Communities Act 1972 (the ECA) and incorporate (convert or transpose) EU law into domestic law, “wherever practical”.The Government has indicated that these legal changes within the Bill would take effect on the day that the UK officially leaves the European Union.

The Great Repeal Bill will be a major new piece of constitutional legislation, which aims to end the supremacy of EU law in the UK, and maximise legal certainty and stability during the Brexit process. The Great Repeal Bill has not yet been published but is expected very soon after the Queen’s Speech on 19th June 2017.

In March 2017, the Government published Legislating for the United Kingdom’s withdrawal from the European Union, a White Paper on the Great Repeal Bill (hereafter the White Paper). The White Paper sets out how the Government will approach the challenge of legislating for Brexit, whilst at the same time providing legal certainty during the withdrawal process.

This briefing addresses each of three main elements of the Great Repeal Bill:

• The repeal of the ECA (Section 2);
• The transposition of EU law (Section 3);
• The proposed use of delegated powers (Section 5).The briefing also covers how the Bill might address the status of EU-derived law post-Brexit, and in particular the judgments of the Court of Justice of the European Union (Section 7).

In addition it considers the complex interaction with devolution, including the possibility of consent motions from the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly, the mechanisms for coordination with the devolved administrations, and the replacement of EU framework legislation on matters of devolved competence such as agriculture or fishing (Section 6).

The briefing also covers how the Bill might address the status of EU-derived law post-Brexit, and in particular the judgments of the Court of Justice of the European Union (Section 7).

What kind of Bill is expected?

The Government has outlined that the Great Repeal Bill will be a simple Bill, which will not contain substantive policy changes itself. The Bill will provide the “legal nuts and bolts” necessary for leaving the EU. The Bill will seek to convert EU law into domestic law wholesale and therefore is unlikely to refer to the specific EU laws to be domesticated.

The Government has indicated that the Bill will be designed to re-establish Parliament’s control over law-making by repealing the ECA and to provide some certainty over the content of the statute book while the UK negotiates its exit from the EU.

The Bill will rely on delegated powers to enable the Government to adapt all EU law, including that converted by the Bill, so that it is fit for purpose on 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. The White Paper indicates that the corrections will require between 800 to 1000 statutory instruments.

The Government wants to ensure that the right balance is struck between the need for scrutiny and speed in dealing with these statutory instruments. It billed the White Paper as the “start of a discussion between Government and Parliament” as to the most pragmatic and effective approach to achieving this.

The House of Commons Procedure Committee started investigating the delegated powers likely to be claimed by the Great Repeal Bill in February 2017 and has published its evidence received to-date.

This legislative challenge is further complicated by the need to co-ordinate the parliamentary legislative process with the withdrawal negotiations, both in terms of the substance of the changes and the timescale. This could very much narrow the parliamentary window available to the Government to pass many of these instruments.

Repealing the ECA

Since the enactment of the ECA in 1972, 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 EU Treaties and EU Regulations are incorporated into domestic law by the ECA and are therefore directly applicable, whereas EU directives are largely given effect by statutory instruments under the ECA. They will need to be “saved” by the Great Repeal Bill.

Repealing the ECA is necessary to change the status of EU law within the UK constitution. The Great Repeal Bill will need to replace the ECA with an equivalent framework that reflects the UK’s new relationship with EU law.

The challenges of converting EU law into domestic law

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 answer, in its White Paper on the Bill, is that all directly applicable EU law will be converted.

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 Court of Justice of the European Union (CJEU).

The White Paper explains that the Bill will not “copy out” EU regulations individually. Instead it is expected that the Bill will transfer them wholesale. The White Paper indicates that directly applicable rights in the EU Treaties will also be incorporated into domestic law by the Great Repeal Bill. The White Paper outlines an important exception to this rule, the EU Charter of Fundamental Rights ‘will not be converted into UK law by the Great Repeal Bill’.

Ensuring the “operability” of EU law

The EU law converted into domestic law and the existing EU-related legislation, namely that which has given effect to the UK’s obligations under the Treaties, will need to be adjusted so that it operates effectively post-Brexit. The Government White Paper on the Bill explains that there are “a variety of reasons” why wholesale transfer of EU law will not be sufficient. These include where the relevant legislation refers to EU institutions, or relies on reciprocal arrangements with EU Member States. The Government’s initial assessment has shown that a “very significant proportion of EU-derived law” will require adjustment to ensure it works after Brexit day. The Great Repeal Bill will include delegated powers to enable such changes to be made by Ministers pre- and post-Brexit.

Delegated powers

The Government has stated that the Great Repeal Bill will contain delegated powers enabling Ministers to give effect to two of the Bill’s most significant purposes:

• To make adjustments to EU-derived law so that it operates effectively post Brexit;
• To give effect to the outcome of the withdrawal negotiations.

When the Great Repeal Bill is being debated in Parliament, the Government will not know either all the technical adjustments needed, or the outcome of the negotiations. As such the Government’s case for these powers is likely to be based on the need for flexible legislative powers that cover multiple scenarios, and that can be used to make a large number of changes in a limited timeframe.

When the delegated powers in the Great Repeal Bill are debated in Parliament there is likely that there will be much scrutiny of:

• Whether the delegated powers are limited in scope by any purpose or subject-based restrictions;
• The parliamentary procedure specified by the Bill to enable the secondary legislation to be made. The White Paper states that the Bill will provide for “the negative and affirmative procedures to be used and that the affirmative procedure may be appropriate for the more substantive changes (i.e. requiring debate and approval by both Houses).

The Government has stated that significant policy changes will be underpinned by subsequent primary rather than secondary legislation.

The House of Lords Select Committee on the Constitution, in its report on the Government’s proposals, published on 7 March 2017, made a number of recommendations relating to delegated powers, including that the powers in the Bill should be limited to particular purposes; and that there should be a special procedure for scrutinising orders made under the Bill that enables a strengthened procedure to apply to orders with significant policy implications.

Devolution

Legislating for Brexit will have significant implications for Scotland, Wales and Northern Ireland.

By transposing all directly applicable EU law (leaving aside some items that cannot be carried over for logical reasons, as mentioned above) the Great Repeal Bill will effectively implement a range of provisions that are within devolved competence (eg agriculture). This would require consent from the devolved legislatures, so long as the Sewel Convention is respected.

The Government’s White Paper indicates that where EU law frameworks have ensured common UK approaches in areas of devolved competence, the Government will seek to introduce UK legislative frameworks to replace those provided by the EU.

Agriculture and fisheries are frequently cited as examples of areas of EU competence, which are currently devolved, that might benefit from UK-wide framework legislation. It is not yet known whether the Great Repeal Bill will seek to make any changes to devolved competence in order to reflect the need for such frameworks: to be effective, they would need to be protected from continuing devolved competence that might lead to them being amended in ways that vary across the UK. The White Paper indicates that the devolved executives will continue to be responsible for the implementation of these frameworks.

In relation to the delegated powers in the Bill, the White Paper states that the ministers of the devolved governments will be given powers to make changes to EU-derived law in areas of devolved competence, matching those given to UK ministers. An alternative approach would be to restrict the Bill to reserved matters and leave the devolved legislatures to create their own continuation Bills. It is not impossible that a mixed approach might be taken, for instance if a devolved administration feels that a UK continuation provision is inadequate.

Relations between the UK and devolved administrations in respect of withdrawal from the EU are primarily conducted through a sub-committee of the Joint Ministerial Committee, known as JMC (EN). The JMC has attracted criticism from Scotland and Wales (Northern Ireland is not currently represented because of the political hiatus there).

The courts and the status of EU law

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 general primacy to EU-derived law over domestic law. The domestic courts will not be obliged to follow the judgments of the CJEU given after Brexit, nor will they be able to refer questions of EU law to the Luxembourg Court.

The White Paper states that EU-derived law will, post-domestication and post Brexit, have a distinct status. The White Paper indicates that the EU-derived law will have primacy over other domestic law enacted before the UK leaves the EU. Legislation enacted after Brexit will have primacy over all EU-derived law.

The CJEU will continue to be influential in UK courts post Brexit. The White Paper states that to enable consistency of interpretation, the judgments of the CJEU pre-Brexit will have the status of UK Supreme Court judgments. The pre-Brexit judgments of the CJEU will therefore represent binding precedent unless the Supreme Court decides otherwise.

It is not yet known how the domestic courts will approach judgments of the CJEU given post-Brexit. In the absence of clear instruction from Parliament, the UK courts could continue to refer to post-Brexit CJEU judgments to guide interpretation of relevant EU-derived law.

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