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Elements in the Great Repeal Bill could spell trouble ahead

On 30 March 2017, the day after triggering Brexit, the government published its white paper setting out the details of its proposed Great Repeal Bill.
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The white paper explained the Bill (which almost certainly won’t be called the Great Repeal Bill) will do three things.

First, as the title of “Great Repeal Bill” suggests, it will repeal the European Communities Act 1972 (the ECA), which took Britain into the EU and meant European law took precedence over laws passed in British Parliament. It will also end the jurisdiction of the European Court of Justice, referred to as “returning sovereignty to the UK Parliament”.

Second, it will keep all EU law which currently applies in Britain. This will be done by preserving UK laws which give effect to EU obligations and by converting directly-applicable EU laws (including workers’ rights) into UK law. It will also make historic EU case law binding on British courts as if they had been decisions of our own Supreme Court.

The government claimed such a move necessary in order to avoid a “black hole in our statute book”, to allow businesses to operate “knowing the rules have not changed overnight” and to provide “fairness to individuals whose rights and obligations will not be subject to sudden change”.

Thirdly, it will empower the government to correct laws that would no longer operate appropriately once we have left the EU.

Each of these elements has its own difficulties. The first raises issues as to timing. The white paper said the ECA will be repealed “on the day we leave the EU” – so the Great Repeal Bill will have been passed into law by that date. But that means the Bill’s provisions will have to be settled while Brexit negotiations are on-going – and before Parliament votes on the final deal.

It was suggested the Bill will address this uncertainty by granting the government “limited power to implement the contents of any withdrawal agreement reached with the EU”. However, it is not clear what this power would entail, how it would be framed and how Parliament might react.

The second element of the Great Repeal Bill raises technical challenges. Currently, over 12,000 EU regulations apply in the UK. Around 1,300 are influenced by EU law, and some 7,900 regulations implement EU law. These may all need changing to ensure UK law remains coherent. Achieving that within two years is a daunting undertaking.

The Great Repeal Bill may be able to make certain changes “across the board”; for example, it might provide any reference in EU-derived legislation to a policy, consent etc. of the European Commission is to be construed (post-Brexit) as a reference to a policy, decision etc. of the UK government. But many other changes will be more complex. And this brings us to the third element, namely, that ministers are to be given powers (known as Henry VIII powers) to make secondary legislation to “correct” Acts of Parliament.

On this, the government claimed to be “mindful of the need to ensure the right balance is struck between the need for scrutiny and the need for speed” – and the white paper is “the beginning of a discussion between government and Parliament as to the most pragmatic and effective approach”. Striking such a balance in a delicate matter of Parliamentary sovereignty might prove more difficult than it sounds. In fact, the House of Lords’ Scrutiny Committee has already raised concerns about how current scrutiny processes would cope with the amount of legislation likely to come forward.

Labour has claimed ministers are being handed sweeping powers to make hasty and ill thought-out laws. Ministers have suggested such measures will be time limited (up to three years after Brexit) and will not be used to change policy. Given the scale of the task, it seems inconceivable that secondary legislation will have been made by Brexit. Uncertainty as to the rights and obligations imposed by EU-derived law post-Brexit seems inevitable. Moreover, the white paper identifies two areas of policy, immigration and customs, as requiring standalone Bills.

Potentially explosive in constitutional terms are the implications for the devolution settlements, which pass to the Scots, Welsh and Northern Irish responsibility for particular matters – and prevent government from legislating on those matters without consent. In certain areas, the devolved assemblies must act within the context of a single EU-wide policy, e.g. agriculture is a devolved matter, but is subject to the EU’s Common Agricultural Policy.

Any UK government policy which is to replace the existing EU regime will require a modification of the current balance of powers. The Scottish Executive’s case for a further referendum to determine these issues as an independent nation (rejected by the Prime Minister) underscores just how contentious this will be.

Aaron Nelson is a senior associate and David Mundy is a partner and parliamentary agent at Bircham Dyson Bell, solicitors.

Image: Shutterstock

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