Repeal Bill risks opening a legislative Pandora's box

The government must focus its attention on ensuring a stable legal framework upon Brexit and not turn the Repeal Bill into a legislative Pandora’s box, a City think tank and Magic Circle firm have warned.

Last week the Queen’s Speech announced that the no longer ‘Great’ Repeal Bill will repeal the European Communities Act 1972 and convert EU law into UK law upon Brexit, providing certainty for individuals and businesses.

Today, a new report written by Linklaters on behalf of the International Regulatory Strategy Group (IRSG), ‘The Great Repeal Bill: Domesticating EU Law’, has urged the government not to use the bill to make policy changes, but rather apply a simple, principles-based approach to adopting and adapting EU and EU-derived law.

Mark Hoban, IRSG’s chair and former treasury minister, said: ‘Domesticating EU law is widely recognised as the biggest legislative challenge the UK has ever faced. Given the complexity and scale of the task, the Repeal Bill should only be used to provide stability and continuity for business and its customers. Policy changes should be in separate legislation and be subject to proper consultation and planning.

‘The UK is the leading international centre for financial and related professional services – and a world-leading legal services hub. This position rests firmly on maintaining a robust regulatory regime and legal certainty. Ensuring that businesses operating in the UK are subject to the same obligations and procedures the day after Brexit as the day before is essential to maintain the UK’s leading position.’

The report outlines eight guiding principles designed to ensure continuity of law, saving time, resources, and cost for both the UK government and City businesses post-Brexit.

Under the proposed principles the acquis and implementing legislation will continue to apply, as UK law, as they stand at the exit date. Policy changes will be dealt with separately from domestication while exclusions from the scope of domestication will be made expressly.

Meanwhile, UK law rights and obligations should continue when the UK leaves the EU, subject to policy change or exclusion. The government will be expected to provide guidance and consult throughout the exiting process.

The report also recommended adopting five rules of statutory interpretation for EU law in the Repeal Bill, which would deal with most of the corrections needed to domestic law without using ‘Henry VIII’ powers.

Also recommended was the establishment of a statutory advisory body, under parliamentary supervision, able to provide guidance on issues of construction and application if ambiguities arise.

Charles Clark, partner consultant at Linklaters, said: ‘The Repeal Bill is an unprecedented task involving the translation of over 12,000 EU regulations into UK law and the adaptation of 7,900 statutory instruments plus primary legislation.

‘The difficulties are compounded by the limited time frame in which to deliver it. However, we believe the right approach is a principles-based one and we have outlined a clear and simple way to get it done.

‘These proposals are not a panacea but do allow government to create a straightforward and transparent process for its own departments and businesses across Britain to follow as the UK leaves the EU.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress