1: Great Repeal Bill – The times they are a-changin’
On 2 October 2016, at the Conservative Party Conference, the Prime Minister announced “a Great Repeal Bill, which will remove from the statute book – once and for all – the European Communities Act”. This “historic Bill”, she said, would mean that “the 1972 Act, legislation that gives direct effect to all EU law in Britain, will no longer apply from the date upon which we formally leave the European Union”. In short, “the authority of EU law in Britain will end”.
She added that this Great Repeal Bill would also “convert” the body of existing EU law into British law – providing certainty to businesses and workers at the point of Brexit – and would allow Parliament, subsequently, to amend, repeal or improve any law it chose.
This blog will follow the Great Repeal Bill (which we shall refer to as the “GRB”) as it makes its passage through Parliament. The GRB will be of major constitutional significance, and is likely to provoke much debate and commentary during its passage. It will make a radical change to the UK’s legal system by (at one stroke) (1) separating the UK from one of its primary sources of law (the EU), (2) preserving the law derived from that source, (3) modifying that preserved law so that it continues to be usable, and (4) providing for the future modification of that law. Once enacted, it will form a key feature of the UK’s legal, constitutional and political landscape for the post-Brexit years to come.
And the enactment of the GRB will be only the start of the process, with further primary and secondary legislation to follow. Subsidiary legislation, made under the GRB, will occupy much Parliamentary time, whatever Parliament’s make-up following the General Election to be held on 8 June 2017. New statutory bodies may need to be set up to replace EU institutions and exercise their functions.
It may be helpful to clarify that the GRB is distinct from, and should not be confused with, the legislation that authorised the triggering of Article 50, the formal mechanism by which the UK told the EU that it was leaving. That legislation was the European Union (Notification of Withdrawal) Act 2017 (the need for which was confirmed by the Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union). Instead, the GRB is necessary to disentangle the laws of the UK and the EU, which have grown increasingly intertwined since the passing of the European Communities Act 1972 (which took the UK into the EU).
How will it do so? We will not know the precise details until the GRB appears but, on 30 March 2017 (the day after triggering Brexit), the government published a White Paper Legislating for the United Kingdom’s Withdrawal from the European Union, which puts some initial flesh on the bones of the Prime Minister’s announcement. It explains that the GRB will do three things:
- First, it will repeal the ECA, which took Britain into the EU and meant that European law took precedence over laws passed in the British Parliament. It will also end the jurisdiction of the European Court of Justice. This is generally referred to as “returning sovereignty to the UK Parliament”.
- Second, it will maintain all EU law which currently applies in the UK, by:
- preserving UK laws which give effect to EU obligations, and
- converting directly-applicable EU laws (including EU Treaty rights, e.g. workers’ rights) into UK law.
It will also make historic EU case law binding on UK courts as if they had been decisions of our own Supreme Court.
- Third, it will empower the government to correct laws that would no longer operate appropriately once we have left the EU.
But as with any legislation, the devil will be in the detail. As yet, the government has not published any indication of how it intends to frame the provisions that will give effect to its proposals – the White Paper simply identifies certain “case studies” which indicate the sort of issues that would (or at least might) arise under “preserved” EU law. The only solution in the White Paper is to give the government power to make secondary legislation that could amend, repeal, or “correct” the relevant law. Labour has already raised concerns about wide-ranging powers being granted to government ministers. The House of Lords’ Constitution Committee is concerned that Parliament’s existing scrutiny measures will not cope with the anticipated avalanche of subsidiary legislation.
In terms of the known timetable, the GRB itself may be formally announced in the next Queen’s Speech, likely in late June or early July 2017, when the new Parliament convenes after the General Election. But the draft text of the GRB may not appear for some months – the Secretary of State for Exiting the European Union (which we can perhaps abbreviate to “SSExEU”), David Davis, has already refused to commit to publishing the Bill in draft so it can be subject to pre-legislative scrutiny.
Our initial blog posts will focus on the (considerable) challenges facing the Bill drafters, the likely content of the GRB, and on the constitutional and legal questions, already being discussed, which will crop up in the coming months. One luxury that the government does not have is time. Article 50 has been triggered – subject to an extension of the two-year notice period under article 50, the GRB must be law by (latest) 29 March 2019.
‘The line it is drawn … the present now, will later be past … for the times they are a-changin’ …’
Bob Dylan, The Times They Are A-Changin’
3 May 2017