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08 May 2017

2: Great Repeal Bill – When is it coming?

As noted in our last post, Article 50 has now been triggered, and so – subject to an extension of the two-year notice period – the UK will leave the EU on 29 March 2019.

The Secretary of State for Exiting the EU (SSExEU), David Davis, in his statement to Parliament of 2 October 2016, indicated that the GRB would be passed before the UK leaves the EU, so that EU law will cease to apply, and domestic law can take its place, on the day of exit. This was echoed by the Prime Minister in evidence to the House of Commons Liaison Committee on 20 December 2016 – she said that the changes made by the GRB will come into force ‘at the point in which we leave the EU.’ She confirmed this point on timing in her Lancaster House speech on 17 January 2017.

So far, so straightforward. But when might the GRB actually appear, and when might it become law? That will largely depend on what form the GRB will take.

When it was first announced, we might have assumed that the text of the GRB would reflect the outcome of the Brexit negotiations with the EU (a ‘full-fat’ GRB). The details of any such agreement are, at present, unknown, save that we know the Government will be negotiating for a ‘hard’ Brexit, ie:

  • leaving the single market, ending the requirement that the UK comply with EU rules and regulations, and tariff-free movement of goods and services;
  • ending free movement, in order to ‘take back control’ of the UK’s borders; and
  • not being bound by rulings of the European Court of Justice.

(Newspapers have reported that the Conservative Manifesto for the 2017 General Election will commit to that position. That will make it far harder for the House of Lords to block Brexit legislation because, under the ‘Salisbury convention’, peers do not block laws which enact pledges made in the manifesto of the governing party.)

In terms of timing, the EU has already indicated that it will not acquiesce to the Government’s suggestion that the negotiations be ‘twin tracked’, ie the EU considers that the terms of the UK’s ‘divorce’ from the EU and the nature of any future trading relationship should be dealt with consecutively. If that position is adopted in the negotiations themselves, then any provisions of a ‘full-fat’ GRB which seek to implement that new relationship may only begin to take shape toward the end of the negotiating period. If that truly were a two-year period, then a full-fat GRB reflecting the outcome of those negotiations wouldn’t be formulated, and so couldn’t be introduced into Parliament, until just before the Brexit date. Leaving it so late seems unlikely to promote certainty, which is one of the Government’s key aims.

And we can also factor into our considerations of timing that the terms of any deal will need to be ratified by the remaining EU Member States, a process which could take six months from the conclusion of the deal. Given that, Michel Barnier (the EU’s chief negotiator) has said that the need for ratification means:

‘Time will be very short. It’s clear that the period of actual negotiations will be shorter than two years. All in all, there will be less than 18 months to negotiate.’

Assuming it were possible to conclude the negotiations within that period, the need for ratification would have brought a ‘full-fat’ GRB introduction date forward to, say, October 2018, ie after the conclusion of the negotiations, but still giving a six month period for the UK to pass the necessary legislation to ready itself to implement the concluded Brexit deal.

Introducing a ‘full-fat’ GRB after the substantial conclusion of the negotiations would have had the advantage of allowing Parliament full cognisance of the likely effects of the Bill. However, in terms of timing, it was always going to be too close to the wire for the Government.

Instead, Parliament will be asked to pass a different form of GRB in advance of the conclusion of the negotiations – and one which grants powers to the Government to make subsidiary legislation to give effect to the outcome of those negotiations (which of course Parliament won’t know).

We will consider that in our next post.

‘ … But they don’t know where and they don’t know when it’s coming, oh when is it coming?’ (Arcade Fire, Keep the Car Running)

 

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