The UK Government’s Brexit strategy took another step forward on 13th July 2017 with the publication of the European Union (Withdrawal) Bill, commonly referred to as the “Great Repeal Bill”.
There was not much of a fanfare for the publication of this piece of legislation which is largely procedural. But, make no mistake, this is a seminal moment in the UK’s constitutional history and the Bill is likely to be rated as one of the most significant pieces of legislation to be tabled before the UK Parliament. It is also a key milestone in the Government’s programme of delivering Brexit by March 2019.
Its introduction into Parliament will herald a long and intense battle as the Government pits its wits against a variety of opposition amendments seeking to provide extra safeguards or table amendments to tie the Government’s hands in its negotiations with Brussels. Now that the Government no longer has an overall Parliamentary majority but is relying on support of the Democratic Unionist Party, it will need to adopt a more conciliatory stance in dealing with Parliament and its role in the Brexit process, if it wants to deliver on its manifesto commitment of securing a decent Brexit deal for the UK.
There is also likely to be strong opposition to the Bill from the Scottish and Welsh devolved governments. They are angry at Westminster reserving to itself the powers repatriated from Brussels. The devolved governments argue some of these powers should be devolved to the Scottish Parliament and Welsh Assembly. They are threatening to oppose the Bill.
The ECA repeal
The Bill repeals the European Communities Act 1972 (“ECA”) as of the UK’s date of exit from the EU (“Exit Date”). It will end the supremacy of EU law in the UK. In addition, EU laws and regulations passed or having an effective date after the Exit Date will be of no further effect in the United Kingdom.
However one of the most important objectives of the Bill is to provide legal certainty as of the Exit Date. This is important to both individuals and businesses (and particularly investors investing in the UK) to ensure everyone knows their rights and obligations before the law. If there were any legal loopholes this would potentially create legal chaos. So this Bill is the Government’s attempt to reassure that the exit from the EU will be done “with maximum certainty, continuity and control” to quote David Davis, the UK’s chief Brexit negotiator.
The ECA incorporated into UK domestic law all EU derived laws at the date of the UK accession into what was then, the European Economic Community. This comprised among other things EU Regulations and Decisions (and decisions taken under them). The Act made them directly effective in the UK with no need for further implementation. EU Directives were different as they had to be specifically implemented by UK legislation to become part of domestic law. So the Act provided a mechanism under Section 2(1) for their incorporation by UK implementing regulations.
If the Government repeals the ECA, a large amount of EU law, principally in the form of these EU Regulations and EU Decisions (and decisions taken under them) would become void and unenforceable overnight. Therefore the Bill specifically re-enacts these types of legislative instruments into UK domestic law as of the Exit Date. The grand plan is that on Exit Date, UK law will be substantially similar to what it was prior to the UK leaving the Community.
In this way the Bill both delivers legal certainty as at the Exit Date but it also buys the Government time in assessing at some future date after Brexit whether to retain, amend or scrap this legislation.
Not all EU legislation can be flawlessly implemented into UK domestic law without amendment. There are many passages in UK laws which refer to EU institutions, reciprocal arrangements between the UK and its institutions and the EU, or EU entities or Member States which no longer exist or are no longer appropriate. In addition, Ministers are also given the power to abolish or amend certain obligations. The Bill gives the Government the power to issue corrective regulations to cure these deficiencies. The regulation making powers are time limited to 2 years and are also subject to further safeguards set out in more detail in Schedule 7 of the draft legislation.
These corrective regulations must be laid before Parliament and must be approved by a resolution of both Houses of Parliament only if they propose the establishment of a new criminal offence, give the power to legislate or create a new public authority in the UK for the purposes of carrying out the relevant duties previously carried on by former EU entities. The controversial part of this Bill is whether these safeguards are enough and whether the Government is going to use its power to issue corrective regulations to make policy decisions rather than say, substituting UK public authorities for the names of EU entities. Expect to see a number of amendments tabled placing the Government under more rigorous scrutiny.
European Court and EU Case Law
As of the Exit Date, UK Courts or Tribunals are not bound by judgments or rulings of the ECJ delivered after that date, nor can they refer matters on interpretation of EU law to Luxembourg. They can however take notice of these rulings if they feel it is appropriate to do so. In relation to any retained EU laws the courts must decide these questions in light of retained case law and general retained EU legal principles of the Exit Date. However the Court of Appeal and Supreme Court are not bound by any retained EU law. They are free to depart from such law but must apply the same test as they would normally apply as to whether to depart from their own case law.
Given that the courts will now have the option of following European court case law after Brexit, there are concerns that this will lead to potentially contradictory and confusing developments of English laws in the future. So the Bill, far from providing legal clarity at and beyond Brexit, has potentially spurred future ambiguity and confusion.