Repealing EU law: The great puzzle

The long-awaited “Great Repeal Bill”, now called the European Union (Withdrawal) Bill, was published on 13 July and aims to secure a smooth transition after withdrawal. As a general impression, and given its near impossible aim, one cannot help but admire the Bill’s technical detail, subtlety, and originality. But no amount of technical ability can guarantee its eventual success.

The Bill’s main feature is the repeal of the European Communities Act 1972. By losing its constitutional basis, EU law as we know it will be no more. The government could have chosen to secure vested rights by retaining the 1972 Act. Instead, selected fragments of EU law will survive domestically, known as “retained EU law”. The transition is organised around “exit day”, the date on which the new arrangements will take effect. This will not necessarily be 29 March 2019, i.e. the day when the UK will no longer be a member of the EU under article 50. Clause 14 states that “exit day” means “such day as a Minister of the Crown may by regulations appoint”. It is thus up to the government to decide when EU law ceases to apply, which could be before or after withdrawal.

The Bill seeks to retain EU law in four ways. First, the Bill provides (at clause 2) that UK delegated legislation created under the 1972 Act will remain valid even after repeal of the parent Act (necessary because the repeal of an enabling act repeals all the statutory instruments created under it). The directives that enabled these statutory instruments, however, are not retained, even if they have direct effect.

Second, the Bill provides (at clause 3) that EU regulations and decisions and some other directly effective law at the time of exit become “retained EU law”.

Third, “rights” recognised and available before exit under section 2(1) of the 1972 Act continue to be “recognised” in domestic law. This is intended to include some treaty articles with direct effect (according to the explanatory notes) but not directives, which are explicitly excluded from “retained EU law” under clause 4(2)(b). The exclusion of the treaties seems to me a strange choice: how is one to understand and apply EU law if not through its treaties?

Finally, the “general principles” of EU law apply only to the extent that they had been “recognised” by EU case law before exit, but not as giving a “right of action” or as a ground for the quashing of unlawful conduct (schedule 1). One other notable change – which shows perhaps that the government is still quietly suffering from the Factortame litigation – is the explicit abolition of the Francovich principle of liability for injurious and manifestly unlawful action of the state, with what appears to be retrospective effect (paragraph 4, schedule 1).

What then will happen to existing UK laws that refer to and implement EU law? Some modification will be immediately necessary. For example, the powers of the European Commission to monitor and enforce the law may have to be moved to some domestic institution. To solve such problems, the Bill creates sweeping new powers that permit ministers to legislate widely by way of statutory instruments, without full parliamentary scrutiny, as long as this is done to manage the transition. These are “Henry VIII” powers.

The most sweeping such power (in clause 7) is that the government may by regulations “make such provision as [it] considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU”. The terms “effectively” and “deficiency” will no doubt attract a lot of attention. The Bill provides some examples of what counts as “deficiency”, which a minister has power to address, but says nothing about how to remedy it.

The powers of the government to legislate on the basis of this clause are immense (and the same applies to the devolution issues arising out of Brexit). The only safeguard is a “sunset clause” that the power to modify domestic law on account of its “deficiency” can only be exercised for two years after exit day.

A final point to note is that the Bill makes no new provision for the ratification of the withdrawal agreement. It provides only for its “implementation” in clause 9. This will presumably take place under the Constitutional Reform and Governance Act 2010 and/or the European Union Act 2011 (which will be repealed under the Bill), both of which require parliament’s assent.

The Bill offers thus some technical answers, but little certainty about the future. The “Great Repeal” may yet be a great puzzle.

Dr Pavlos Eleftheriadis is a barrister at Francis Taylor Building and a fellow in law of Mansfield College, University of Oxford

@FTB_law www.ftbchambers.co.uk