On 2 October 2016 the Government announced its intention to introduce a 'Great Repeal Bill' (the "Bill") before the UK Parliament, and this is expected to feature in the Queen's speech in May 2017.
The Bill will not come into force until the UK leaves the EU. Its principal purpose will be to repeal the European Communities Act 1972 (the "ECA"), which gives effect and priority to EU law in the UK – thereby formally reasserting the sovereignty and independence from the EU of domestic law. The Bill's second purpose is rather different: to preserve and convert into domestic law the whole body of EU law applying to the UK at the time it leaves the EU (to the extent it has not already been implemented domestically). This is to avoid the risk of a large vacuum in UK law when EU law ceases to apply.
On 2 October 2016 the Government announced its intention to introduce a 'Great Repeal Bill' (the "Bill") before the UK Parliament, and this is expected to feature in the Queen's speech in May 2017. The Bill will not come into force until the UK leaves the EU. Its principal purpose will be to repeal the European Communities Act 1972 (the "ECA"), which gives effect and priority to EU law in the UK – thereby formally reasserting the sovereignty and independence from the EU of domestic law. The Bill's second purpose is rather different: to preserve and convert into domestic law the whole body of EU law applying to the UK at the time it leaves the EU (to the extent it has not already been implemented domestically). This is to avoid the risk of a large vacuum in UK law when EU law ceases to apply.
Very little detail about the Bill is currently available. It appears likely, however, that the Bill will contain provisions aimed both at transferring the bulk of directly applicable EU law into domestic law and also preserving most secondary legislation made under section 2(2) ECA. Since so much legislation is expected to require amendment if it is to continue to function, and so as to reflect the UK's altered status, the Government has indicated that the Bill will need to contain delegated powers, including to enable Ministers to amend primary legislation through secondary legislation. There will be a parliamentary procedure to enable scrutiny of the way such powers are used but this aspect of the Bill may prove controversial.
A briefing paper on the Great Repeal Bill, published by the House of Commons Library, which considers these issues in great detail, is available here.
The European Communities Act – key features
The ECA was enacted in 1972 to provide for the UK's accession to what is now the EU. It provides the legal basis on which EU law has effect as national law in the UK. Section 2(1) provides for any rights and obligations created by the EU Treaties, and all directly applicable EU law (typically EU Regulations), to be given legal effect in the UK without the need for any further legislative measures by the UK Parliament. Section 2(2) introduces a broad statutory power that enables ministers to enact statutory instruments giving effect to EU law that is not directly applicable. Those powers are also the source of the implementing legislation necessary to give legal effect to EU Directives. Some EU Directives are implemented by Acts of Parliament but the majority are given effect through secondary legislation based on Section 2(2). negotiations and the UK's resulting status, which will remain unknown at the time the Bill is enacted. It is therefore likely that the Bill will evolve in the course of the Brexit process.
The ECA also gives priority to EU law over UK law (Section 2(4)) and requires UK courts to follow the CJEU's interpretation of EU law (Section 3(1)).
Implications of the repeal of the European Communities Act
The Government has said that the Bill will give effect to the referendum result of 23 June 2016 and "return sovereignty to the sovereign institutions of the UK". The Bill's primary effect of repealing the ECA would be a powerful symbolic step towards achieving this, because the ECA is the piece of legislation that first brought the UK into what is now the EU. In isolation, the legal consequence of repeal would be that all EU legislation currently applying in the UK by virtue of the ECA (under Section 2(1) or 2(2)) would cease to have effect. EU law would cease to have supremacy over UK law and the UK courts would no longer be bound by rulings of the Court of Justice of the EU (the "CJEU") when dealing with questions of EU law. Repealing the ECA would not affect every aspect of domestic law derived from the EU. For example, the validity of any EU legislation enacted by Parliament independently from the ECA would not be affected. Examples include amendments to the Financial Services and Markets Act 2000 and related subsidiary legislation and parts of the Companies Act 2006. However, in many cases such legislation would require amendments in order to function effectively.
The potential effects of the unalloyed repeal of the ECA would therefore be sweeping, giving rise to a significant risk of unforeseen consequences and major gaps in the law, and therefore uncertainty in many areas. That is why the Government is proposing that the Bill should not only repeal the ECA but also preserve and convert into domestic law the whole body of EU law applying to the UK at the time it leaves the EU (to the extent it has not already been implemented domestically), potentially including judgments of the CJEU.
Transposition of EU law into domestic law – challenges
Transposition of EU law into domestic law may seem a simple and neat solution, but it raises a number of challenges. For example:
- A range of measures relate to the UK's membership of the EU and therefore cannot be transposed (for example the laws enabling citizens to stand for European Parliament elections).
- In the case of legislation that is cross-border or international in nature, it will not be possible for the UK unilaterally to preserve the effects of these frameworks without the cooperation and consent of other Member States and the EU (for example the Treaty provisions on free movement). The extent to which such frameworks will remain relevant, and the way they will operate, depends on the final deal negotiated between the UK and the EU.
- Many laws make reference or assign roles to EU bodies and depend upon those bodies in order to be effective (for example the European Medicines Agency which is responsible for evaluating medicinal products). Assuming a departure from the EU Single Market, the Government will need to decide how it will deal with such legislation. Options would be for the UK to continue to be bound by the decisions of such bodies or to create equivalent national bodies (with or without mutual recognition of decisions in order to reduce the cost and burden on businesses concerned).
- There are many other questions arising from this approach:
- Should historical decisions of the Council and the Commission and historical CJEU judgments continue to be binding within the UK on the persons to whom they are addressed;
- What should be the status of historical and new decisions of the CJEU on the interpretation of transposed law? Should courts in the UK and relevant authorities be bound by historic decisions or required to have regard to these and new ones;
- How should these laws be interpreted: purposively in accordance with EU legal principles or strictly as an English statute? Can regard be had to underlying Directives, recitals and preparatory works as aids to interpretation? The answers to these questions will greatly affect the degree and rapidity of divergence;
- Should there be any right to adopt new EU laws, especially amendments, to maintain parity;
- Should EU concepts, such as proportionality, be recognised as part of the laws applicable in the UK in relation to administrative actions, whether or not derived from EU law?
The Great Repeal Bill will clearly not be able, therefore, to resolve all the immediate issues and uncertainty arising at the moment of Brexit. The Government will need to make a number of important decisions as to which legislation is transposed and how it is transposed. Many of these decisions will depend on the outcome of the final exit.
The Government's announcement of the Bill on 2 October 2016 suggested that the process of adapting the statute book to fit the UK's new relationship with the EU would happen in two stages. First, EU law would be transposed into UK law with minimal changes and second, any necessary amendments and repeals would follow in due course. The Department for Exiting the EU has since indicated that the Great Repeal Bill will include powers for ministers to make amendments by secondary legislation, giving the Government the flexibility to take account of the Brexit negotiations as they proceed.
Delegated powers would certainly assist Parliament with the enormous task of amending the body of EU related legislation to ensure it functions effectively and reflects the Government's policy objectives post-Brexit. However, the delegated powers contained in the Bill may prove controversial, particularly as they are expected to include so-called 'Henry VIII' powers, under which ministers are able to amend primary legislation through secondary legislation. Such powers can, unless they are narrowly drafted or include adequate safeguards, be capable of abuse by Government because they provide a mechanism for bypassing the normal legislative process necessary to enact primary legislation. In this case it will be difficult to keep the powers under tight control because of the practical difficulty of limiting their subject matter to certain defined topics, given that the remit of EU law covers such a wide range of policies.
It will therefore be necessary for the Bill to include carefully calibrated safeguards to ensure adequate Parliamentary control of the delegated powers without removing their benefit – a flexible procedure for quickly amending legislation. Henry VIII powers are generally subject to greater scrutiny by Parliament than is offered under the standard affirmative procedure, but the typical safeguards may be unworkable in the context of Brexit, where ministers will need to employ the powers on an unprecedented scale in a limited time. It will be interesting to see how this is dealt with in the Bill – and what reaction is received.
Role of the devolved administrations
Under the Sewel Convention the UK Parliament will not normally legislate on devolved matters without the consent of the relevant devolved legislature. In relation to Scotland, the convention is perhaps reinforced by its incorporation into statute through section 2 of the Scotland Act 2016. If the Great Repeal Bill provides for changes to EU law that are within the devolved competencies (for example environmental law, agriculture, and fisheries), as appears highly likely, legislative consent motions may well be sought. The Government may seek to avoid this by restricting the Bill to reserved matters and leaving the devolved legislatures to pass their own legislation or, conceivably, by relying on delegated powers. The withholding of consent is unlikely ultimately to be insurmountable, but it may nevertheless be politically uncomfortable.
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2017