4: Great Repeal Bill – I don’t want you, but I need you
The GRB will repeal the European Communities Act 1972 (the ECA), the UK statute which took the UK into the EU and meant that European law took precedence over laws passed in the British Parliament. The Prime Minister said at Tory party conference ‘the authority of EU law in Britain will end’.
In the next two posts, we consider what the repeal of the ECA might mean. In order to do so, we will first look at what it currently does.
First, the ECA provides that EU law has, or is to be given, authority as part of the law of the UK. This happens in one of three ways:
- First, the EU Treaties themselves are directly applicable by virtue of section 2(1) of the ECA. Some of the provisions of those Treaties create rights (and duties) which are directly applicable in the sense that they are enforceable in UK courts.
- Secondly, where the effect of the EU Treaties is that EU legislation is directly applicable in domestic law, section 2(1) provides that it is to have direct effect in the UK without the need for further domestic legislation. This applies to EU Regulations, which are directly applicable by virtue of article 288 of the Treaty on the Functioning of the European Union (the TFEU).
- Thirdly, section 2(2) of the ECA authorises the implementation of EU law by delegated legislation. This applies mainly to EU Directives, which are not, in general, directly applicable but are required (again by article 288) to be transposed or implemented into national law.
Next, by virtue of the ECA and the provisions of the Treaties which it applies, EU law is accorded supremacy over UK statute law, ie anything in our law which is inconsistent with EU rights and obligations must be modified or construed to avoid that inconsistency. We will consider this aspect in our next post.
(These two elements have previously been subject to attack by what we used to call ‘Eurosceptic’ MPs: Douglas Carswell and Phillip Hollobone previously sponsored unsuccessful European Communities 1972 (Repeal) Bills; Christopher Chope and William Cash, unsuccessful United Kingdom Parliamentary Sovereignty Bills.
Parliament sought to capture that the ECA is the means by which EU law has authority in the UK in section 18 of the European Union Act 2011 (which, with the benefit of hindsight, can perhaps be seen as an unsuccessful attempt by ‘Europhiles’ to keep the Brexit tide at bay). It provides that:
‘Directly applicable or directly effective EU law … falls to be recognised and available in law in the United Kingdom only by virtue of [the ECA] or where it is required to be recognised and available in law by virtue of any other Act.’
The Government argued in Miller that the ECA was the ‘source’ of EU law’s authority. However, the majority in the Supreme Court in took a different view (para. 65):
‘… although [the ECA] gives effect to EU law, it is not itself the originating source of that law. It is … the ‘conduit pipe’ by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.’
Some commentators have argued that, once the UK has left the EU (and so is no longer subject to the EU Treaties), there will be nothing for the ECA to give effect to, and accordingly there is no need to repeal the ECA at all. To continue the ‘conduit pipe’ analogy, they say the pipe will be disconnected at its ‘Treaty’ end, and so nothing (ie no rights, obligations or law) will flow along it. Others say that, in Miller, the majority in the Supreme Court held that the ECA recognised a new source of UK law, namely the EU, and so an Act of Parliament is required to remove that source, ie the ECA must be repealed.
It may be thought that this argument has only academic interest – plainly, it would be nonsensical (in the context of the political reality of Brexit) to retain a ‘disconnect pipe’ ECA on the statute book. But there are other, more positive, arguments for the repeal of the ECA, namely that its repeal clarifies the position for those who might otherwise be able to claim that they maintain ‘directly-applicable-in-the-UK’ Treaty rights through dual EU and UK citizenship (which group includes all those born in Northern Ireland).
What effect will the repeal of the ECA have on the authority of EU law? Ordinarily, the repeal of an Act of Parliament also repeals all subsidiary legislation made under or applied by it. In the case of the ECA, over 12,000 EU regulations apply in the UK, and some 7,900 UK regulations implement EU law. Repealing all of those would leave what the GRB White Paper described as a ‘large hole’ in the UK’s statute book. Some hardline Brexiteers may not want EU law, but the UK seems to need it (in the short term at least).
The solution is for the GRB to seek to preserve and carry over into UK law the full body of EU law not already implemented in national law. The GRB White Paper gives the example of Workers’ Rights. It states:
‘The Great Repeal Bill will convert EU law into domestic law. This means that the workers’ rights that are enjoyed under EU law will continue to be available in UK law after we have left the EU. Where protections are provided by the EU treaties as a final ‘backstop’ – such as the right to rely on Article 157 of TFEU (equal pay) directly in court – they will also be preserved.’
One option would be to draft that Bill provision in general terms, stipulating something to the effect of, ‘all existing EU law applicable in the UK on the date of withdrawal from the EU remains in force’, followed by a list of specific exceptions.
It has been argued that those specified exceptions will have to include any EU-derived individual rights (including those in the Human Rights Act 1998) which are not to be ‘retained’ post-Brexit. This is because the Interpretation Act 1978, s.16 provides that, in the absence of contrary statutory intent, a repealing statute does not affect the previous operation of the repealed Act – accordingly, an express provision is required to remove such acquired rights.
No matter how drafted, it seems inevitable that there will be uncertainty as to exactly which laws and rights have been retained.
‘I don’t want you, but I need you’ (Smokey Robinson and the Miracles, You Really Got A Hold On Me)
16 May 2017