This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
Summary and implications
The Government's White Paper on the Great Repeal Bill (the Bill) was published yesterday.
The Bill deals with all EU laws and regulations, of which there have been thousands, made over the past 40 years while the UK was part of the EU. Specifically the Bill will:
- repeal the European Communities Act 1972, which provides legal authority for EU law to have effect as national law in the UK;
- transfer all EU laws currently in force onto the UK statute book; and
- create powers to make secondary legislation. This will enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU, so that the legal system continues to function correctly outside the EU, and will also enable UK domestic law to reflect the content of any withdrawal agreement under Article 50.
Why would the UK seek to keep EU law when we are leaving the EU?
EU law covers many areas such as the environment, regulation of financial services and employees' rights. Without the Bill, when the UK leaves the EU, all of these rules and regulations would no longer have legal effect in the UK, leading to confusion and uncertainty. David Davis, Secretary of State for Exiting the EU, has stressed that carrying EU laws over into UK law will create a “calm and orderly exit” from the EU, while giving the Government and Parliament time to review, amend or dispose of these laws in future.
Some of the rules to be kept give powers to the European Commission or an EU agency. Keeping them in the current form might not be desirable at a time when the UK has left the EU.
When will it come into force and will it have any effect before the UK leaves the EU?
The plan is for the Bill to complete its passage through Parliament well before the time when the UK leaves, but for it to include “commencement provisions” enabling ministers to bring it into force at a moment of their choosing. The Government has said that the Bill will come into force “from the day we leave the European Union”. This is likely to be 29 March 2019, being two years after the Government formally triggered Brexit by delivering the Article 50 letter on the 29 March 2017, although if Article 50 negotiations are extended, this may be later.
Any implementation pre Brexit however would place the UK in breach of its EU Treaty obligations.
Will Parliament and the devolved administrations get to vote on it?
MPs and peers will get a chance to scrutinise, debate and vote on the bill, as part of the normal process of parliament. It will be scrutinised through debates in the Houses of Commons and Lords, and will receive more detailed line-by-line scrutiny in select committees in the usual course. Amendments can of course be made to the Bill. Both the Commons and the Lords will need to approve the Bill, with any amendments, before it can be passed.
The devolved administrations are also given equivalent means to deal with EU law that has been implemented at the devolved level.
In areas where the devolved administrations and legislatures have competence, such as agriculture, environment and some transport issues, the devolved administrations and legislatures are responsible for implementing the common policy frameworks set by the EU. When the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK, allowing these rules to be set in the UK.
This process could take some time. The legislation to ratify the Maastricht Treaty, for example, took up 41 days in both Houses.
Statutory instruments will be used to make technical changes, with up to 1,000 pieces expected. This is nearly as many as MPs usually deal with in an entire parliamentary lifespan.
The House of Commons Library estimates that approximately 13% of legislation enacted between 1993 and 2004 is EU-related. It suggests the review will constitute one of the largest legislative projects ever undertaken in the UK.
Reliance on secondary legislation
The plans to give ministers the power to make changes to some laws without full Parliamentary scrutiny are controversial. However, the Government says that such changes will only be “mechanical” to ensure that the laws function.
The Government proposes using existing types of statutory instrument procedure to allow Parliament to see all statutory instruments, with different levels of scrutiny. The most commonly used procedures are the negative procedure (which does not require debate) and the affirmative procedure (which requires debate and approval by both Houses). Under the negative procedure, members of either House can require a debate, and if necessary, require a vote.
Many statutory instruments will follow the negative procedure. The affirmative procedure may be appropriate for the more substantive changes.
As an additional constraint, the Government confirmed ministers’ power to correct the statute book will be time-limited, particularly given most changes will need to be made before the day we leave the UK.
The Government is mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed. The White Paper is stated as being only the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area.
Court of Justice of the European Union (CJEU) and European Court of Human Rights
The Bill will bring an end to the jurisdiction of the CJEU in the UK and will not oblige UK courts to consider cases decided by the CJEU after we have left.
However, the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in UK courts as decisions of the Supreme Court. Any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.
There are currently no plans for the UK to end participation in the European Court of Human Rights.
The Crown Dependencies and the Overseas Territories, including Gibraltar, are not part of the UK for the purposes of EU law, nor are they separate members of the EU. However, they do have differing special statuses under the EU treaties. The Crown Dependencies are the Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man. Their relationship with the EU is set out in Protocol 3 to the UK’s Act of Accession of 1972. As a general rule, the Crown Dependencies are not bound by EU law, but they are part of the customs territory of the EU. Therefore, EU customs matters, the common external tariff, levies, quantitative restrictions and any other measures having equivalent effect apply in the Crown Dependencies. These will be affected by the Great Repeal Act and will be subject to further engagement with the UK government.
Uniquely among the Overseas Territories, Gibraltar is largely subject to EU law. But there are some important exceptions, and certain provisions of EU law do not apply to Gibraltar under the UK’s Act of Accession 1972. These include the provisions on the free movement of goods, the common commercial policy, the common agricultural policy, the common fisheries policy, and rules on VAT and other turnover taxes. Gibraltar is also outside the common customs territory and as a result EU rules on customs do not apply.
As each territory has its own equivalent legislation to give effect to the EU law which applies to it and to a differing extent for each, the Government has committed to working with the overseas territories on the technical engagement of any implications for them of the Bill for their respective jurisdictions. The purpose will be to achieve the same aims as for the UK, namely ensuring the same rules and laws will apply on the day after exit as on the day before.