Legislating for Brexit: proposals for the Great Repeal Bill

This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. 

On 31 March 2017, the government published a white paper setting out its plans to legislate for the United Kingdom’s withdrawal from the European Union.

This is the second white paper to be published on Brexit. The first, published in February, outlined the government’s approach to negotiating the UK’s future relationship with the EU. The new white paper focuses on the so-called Great Repeal Bill, to be introduced at the start of the next parliamentary session, which will prepare the UK statute book for withdrawal.

Despite its title, the Great Repeal Bill will not repeal much, if any, EU law. While it will repeal the European Communities Act 1972, it will also convert EU law, as it stands on the date of withdrawal, into UK law. The Bill will also make provision for EU-derived law to be amended as necessary to enable it to operate appropriately after Brexit. 

Repealing the European Communities Act

The effect of repealing the European Communities Act will be that, with effect from the date of withdrawal, EU law will no longer apply in the UK. EU Treaties and Regulations will cease to have direct effect in UK law; the special procedure by which government ministers and departments implement European Directives in the UK will no longer be available; and UK law will not be construed and have effect subject to European law, including the decisions of the European Court of Justice in Luxembourg.

Converting existing EU law into UK law

As we suggested in our earlier article on the legal implications of the EU referendum, however, simply repealing the European Communities Act would result in a legislative vacuum in many areas currently covered by EU law. Consequently, the Great Repeal Bill will convert EU Regulations into UK law, and preserve in UK law the secondary legislation made under the European Communities Act to implement EU Directives.

As for the EU Treaties, where they contain ‘rights … that can be relied on directly in court by an individual’, those rights will be incorporated into UK law, and courts ‘will continue to be able to look to the treaty provisions [as they exist when the UK leaves] in interpreting EU laws that are preserved’.

The European Court of Justice will no longer have any jurisdiction in the UK, but its existing case law, up to the date of withdrawal, will continue to be binding on UK courts as they interpret EU law that has been converted into domestic law. The ECJ’s decisions will have the same status as decisions of the UK’s Supreme Court: this means the Supreme Court will normally consider them as binding precedents, but will be able to depart from them ‘when it appears right to do so’. It appears that future judgments of the ECJ, given after withdrawal but interpreting EU law that has been transposed into UK law, will not be binding on UK courts.

EU-derived law, as preserved in the UK by the Great Repeal Bill, will continue to take precedence over domestic laws enacted before withdrawal, but legislation passed by Parliament after withdrawal will take precedence over preserved EU-derived law. In this way, the general supremacy of EU law that has been a feature of the English legal landscape since the Factortame litigation of the 1990s (if not earlier) will come to an end.

The Charter of Fundamental Rights of the European Union, which was given the same legal status as the EU Treaties in 2009, will not be converted into UK law. The Charter operates to ensure that European institutions and EU member states do not infringe fundamental rights when implementing EU law. Many of the rights protected under the Charter are also protected by the European Convention on Human Rights and other international treaties; other rights, such as the right to vote in European elections, will cease to be relevant after withdrawal from the EU. Existing case law that makes reference to the Charter will be interpreted as referring to the underlying rights concerned, rather than to the Charter itself.

While the principles set out in the white paper are clear, no detail is provided as to how the snapshot of EU law to be taken at the moment of withdrawal will be preserved and published. Some attention will need to be given to this point if EU-derived law remaining in force in the UK is to be clear and accessible. 

Delegated powers

While much EU law will continue to work effectively once it has been converted into UK law, there will also be much that will need to be amended if it is to operate properly after withdrawal. For example, references in UK legislation to ‘EU law’ will need to be amended or removed. And references to EU institutions and agencies will need to be repealed or replaced with UK institutions, requiring choices to be made about which UK institution should be used in each case.  

It is proposed that the Great Repeal Bill will give ministers power to make amendments of this kind by way of secondary legislation (Statutory Instruments) – mirroring the powers currently available under the European Communities Act by which ministers use secondary legislation to implement EU Directives.

The new power will include a so-called Henry VIII clause, by which secondary legislation can be used to amend primary legislation. Since much EU legislation is effected using secondary legislation in any event, however, the amendments to be made to secondary legislation will be no less significant than those made to primary legislation.

While the use of such powers is nothing new, the extent of their use in relation to Brexit will be exceptional. The House of Lords Select Committee on the Constitution has argued that such a ‘transfer of legislative competence from Parliament to government … raises constitutional concerns of a fundamental nature, concerning as it does the appropriate balance of power between the legislature and executive’.

It has been reported that Gina Miller, who brought the case in which the Supreme Court decided that ministers could not give notice to withdraw from the EU without the authority of an Act of Parliament, will consider opposing the use of Henry VIII powers, though it is unclear on what grounds a legal challenge could be brought if Parliament itself enacts the use of such powers by way of the Great Reform Bill.

The task of identifying the changes needed to domesticate EU law in the UK will be a large one. It is estimated that between 800 and 1,000 Statutory Instruments will be needed to effect the necessary amendments – close to the total number made each year.

There is expected to be discussion with Parliament as to the scope of the delegated power and the most effective form of parliamentary scrutiny. It may be difficult to define the power precisely; the white paper suggests it should come with a constraint, so that it cannot be used to effect discretionary amendments to EU-derived law resulting from changes in policy.

In any event, it has been agreed that the delegated power will have a sunset clause, so that it will cease to be available to ministers after a certain time (the Institute for Government has suggested two or three years).

Parliamentary scrutiny

As the House of Lords Select Committee has pointed out, the challenge will be to balance ‘the need for speed, and thus for governmental discretion, with the need for proper parliamentary control of the content of the UK’s statute book’.

The need for speed arises from the fact that, even if the Great Reform Bill is introduced early in the 2017–18 parliamentary session, it is unlikely to receive royal assent until early in 2018. There will then be little more than a year before the deadline for withdrawal (28 March 2019) in which to introduce the secondary legislation necessary to ensure that the statute book will function effectively as soon as withdrawal occurs.

The Institute for Government has therefore argued that, while ‘the government needs to avoid the risks associated with too little parliamentary scrutiny of Brexit, ... Parliament needs to avoid the risks associated with prolonged and unprioritised scrutiny of Brexit-related legislation’ – ‘ultimately, that the essential legislation is not in place when the UK leaves the EU, creating uncertainty and possible cliff edges’.

In the white paper, the government proposes that existing parliamentary procedures for passing secondary legislation should be used, including the negative procedure for routine amendments and the affirmative procedure (which includes debate by both Houses of Parliament) for more substantial changes. The House of Lords Select Committee suggested that a super-affirmative procedure, allowing for strengthened scrutiny by Parliament, could be used in some cases, but the constraints of time are unlikely to allow such a procedure to be used extensively.

Two other suggestions have been made. The House of Lords Select Committee proposed that the explanatory memorandum to each Statutory Instrument should confirm whether it ‘does no more than necessary to ensure that the relevant aspect of EU law will operate sensibly on the UK following the UK’s exit from the EU’ and make a recommendation as to the appropriate level of parliamentary scrutiny, which would be then decided by a parliamentary committee.

The Institute for Government has suggested that, because Statutory Instruments are not usually capable of amendment, some legislation could be introduced for scrutiny in draft form, so that any concerns can be addressed before the legislation is introduced in final form.

A complication is that EU law will continue to develop up to the date of the UK’s withdrawal, making the task of amending it akin to shooting at a moving target. The scope of some amendments may depend on the UK’s future relationship with the EU, which will not be known until the withdrawal agreement is finalised, and any transitional arrangements agreed will introduce a further level of complexity. There will also be the need for a contingency plan if no agreement is reached.

It seems inevitable that the scale of this exercise will limit the amount of parliamentary time available over the next two years for legislation that is not Brexit-related.

Primary legislation

Separately to the Great Repeal Bill, the government will introduce other primary legislation to make substantive changes to the law in certain areas, such as immigration and customs, which will need to be made before withdrawal from the EU takes effect.

More broadly, it is expected that EU-derived law, as it remains in force in the UK, will be amended more substantially after withdrawal for reasons of policy. These changes will be made by primary legislation in a more extended process by which, as the House of Lords Select Committee put it, ‘the body of EU law can be sifted, and decisions taken as to which aspects of (what was) EU law are to be retained, amended or replaced’.

This will be a longer-term process, informed by the withdrawal agreement but unconstrained by the article 50 timetable, that will doubtless continue for some years. The white paper does not propose that EU law that has not been amended or replaced within a certain period should determine automatically, and so some EU-derived law may remain on the UK statute book indefinitely.

The devolution settlements

Certain policy areas, such as agriculture and the environment, are the responsibility of the devolved administrations in Scotland, Wales and Northern Ireland. In these areas, the devolved administrations operate within the common policy frameworks set by the EU, with which their acts must be compatible. The white paper expects ‘a significant increase in the decision-making power of each devolved administration’ after withdrawal.

Nevertheless, in order for the UK single market to continue to function effectively, the current frameworks provided by EU rules will initially be replicated by UK (rather than devolved) legislation. It is not clear whether the Sewel Convention, whereby ‘the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature’ will apply to the Great Repeal Bill: perhaps it will not, since the initial intention is simply to reproduce the current EU rules in UK law, rather than making any changes. The white paper does promise ‘intensive discussions with the devolved administrations’ to determine the extent to which such common UK frameworks will need to be retained after withdrawal.

Like UK ministers, devolved ministers will have also have delegated powers to amend devolved legislation that would otherwise not operate effectively post-withdrawal.

Crown Dependencies and Overseas Territories

The relationship between EU law and the Crown Dependencies and UK Overseas Territories, which are neither part of the United Kingdom nor separate members of the EU, is currently somewhat complex.

The Channel Islands and the Isle of Man are in general not subject to EU law, but they are part of the EU customs union. There is free movement of agricultural goods and products between the islands and the EU.

Gibraltar, on the other hand, is outside the customs union, but is largely subject to EU law, with the exception of EU provisions relating to free movement of goods, the common commercial policy, the common agricultural policy, the common fisheries policy, and VAT rules. The EU treaties have little effect in the other UK Overseas Territories and the Sovereign Base Areas in Cyprus.

The white paper does not make any specific proposals relating to the Crown Dependencies and Overseas Territories, but pledges to engage with them fully as the Great Repeal Bill is drafted and the government negotiates to leave the EU.

Future developments

The white paper does not include an outline of the Great Repeal Bill, or any draft clauses. The next step will come when the draft Bill is published. We will then see in more detail how the government’s proposals to enact and amend EU law will be given effect.