The Great Repeal Bill explained
David Golten considers the passage of the government's repeal bill and what it means for UK law
At the 2016 Conservative party conference, the prime minister announced that the government would introduce a 'Great Repeal Bill' to give effect to the result of the referendum on the UK's membership of the European Union. A white paper for the bill was published on 30 March 2017.
What will it do?
The bill will do three things: First, it will repeal the European Communities Act 1972, which is the legislation which took us into the European Economic Community and adopted all EU law as national law in the UK. This will no longer be the case after Brexit.
Second, it will make all EU laws UK domestic law. This means that laws and regulations made over the past 40 years while the UK was a member of the EU will continue to apply after Brexit to avoid a legal 'black hole' and to give parliament an opportunity to review the whole book of legislation and decide which it wants to keep and which it wants to throw out.
Third, it will create powers to make secondary legislation. There will not be time for parliament to scrutinise every change of the law, so the bill will give ministers powers to make these changes by secondary legislation, which is subject to less scrutiny by MPs.
Why is the UK keeping EU laws?
Without the Great Repeal Bill, when the UK leaves the EU, all the rules and regulations which are currently part of our law through our membership of the EU would no longer have legal standing in the UK, creating a 'black hole' in the statute book and leading to uncertainty and confusion. By carrying EU laws over, the government plans to provide for what David Davis, secretary of state for exiting the EU, calls 'a calm and orderly exit', while giving the government and parliament time to review, amend, or scrap these laws in future.
Does this restore the UK sovereignty?
The white paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster must be compatible with those passed in Brussels.
The document also says that past judgments of the European Court of Justice will be downgraded in status after Brexit. Previously, on questions of EU law, it has been binding on all UK courts, including the Supreme Court.
CJEU judgments will have no role in the interpretation of laws passed by parliament after the UK has left the EU. Pre-Brexit CJEU judgments will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases. The role of post-Brexit CJEU judgments on pre-Brexit laws is still unclear.
Secondary legislation and devolution?
The amount of primary legislation which would be required to make all the necessary changes to the existing body of EU law would require a prohibitive amount of parliamentary time, which makes it impossible to undertake all the legal changes necessary by this means.
Therefore, the government has proposed to create a power to make legislative changes where necessary, to rectify problems occurring as a consequence of leaving the EU by means of secondary, minister-authorised, law.
The government acknowledges there will need to be some constraints on how ministers can use secondary legislation to change the law, but it does not say how those constraints will operate or what they will be.
The white paper commits to 'intensive discussions with the devolved administrations' about how policy powers repatriated to the UK from the EU will be distributed between the home nations.
When will it be published?
The government says the bill will be included in the next Queen's Speech and introduced in the next parliamentary session, due to begin in May or June 2017.
The plan is for the bill to complete its passage through parliament well before the point at which 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 says that the bill will come into force 'from the day we leave the European Union'.
MPs and peers will be able to scrutinise, debate, and vote on the bill, as part of the normal process of parliamentary scrutiny. Finally, parliamentary rules make it very unlikely that the bill will in fact be called the Great Repeal Bill. It is much more likely to be called something like the European Union Bill.
By David Golten is head of litigation at Wedlake Bell