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30 May 2017

6: Great Repeal Bill – Bring it on home

The Government’s aim is to take all EU law which currently applies in the UK and, wherever practical, transfer it into British law, so that it continues to apply after Brexit. As the SSExEU put it in his evidence to the House of Commons’ Exiting the European Union Committee, on 14 December 2016:

‘It will take the acquis communautaire and put them pretty much – not quite – untouched into British law … [The GRB] could almost, equally, be called the great continuity Bill …’

The process envisaged can probably be most easily understood by way of a diagram.

Great-repeal-bill-legislative-process

The acquis communautaire is the ‘body of EU law’ – but what does that actually consist of? As set out in the orange boxes on the diagram, it includes:

  • EU Treaty provisions and EU Regulations, both of which have direct legal effect in the UK by virtue of the ECA (until it is repealed by the GRB);
  • decisions, adopted by the EU and addressed to a particular party, ie an individual, a company or a Member State;
  • EU Directives, which do not apply directly in UK law but are implemented in the UK by domestic primary or secondary legislation (sometimes made under the ECA);
  • CJEU judgments (which are binding on the UK courts); and
  • what can loosely be described as EU law ‘concepts’, probably the best known of which is the concept of proportionality.

In later posts, we will consider particular issues which arise from the ‘transposition’ of these different sources of EU law into UK law.

In the remainder of this post, however, we will discuss an approach to ‘transposition’ which the Government seems, from the White Paper, to have decided against.

As previously discussed, it seems increasingly likely that the GRB will be drafted in general terms (eg ‘all EU law in force under the ECA immediately prior to its repeal by this Act shall have full force and effect by virtue of this Act’), whilst also being recognised in the GRB White Paper that simply ‘transposing’ the EU law in this way is not sufficient, it must be modified so that it still makes sense. The Government’s proposed solution is to seek delegated powers to ‘correct’ those laws on a case by case basis. (We will discuss the scope of those powers in a later post).

Absent from the White Paper, however, is any suggestion that the GRB will also contain some general provisions intended to assist with the interpretation of EU-derived law across the board. For example, the White Paper explains that terms such as ‘EU law’, ‘Member States other than the UK’, ‘EU obligations’, and so on, will need to be corrected, and gives the specific example of s171 of the Enterprise Act 2002, which requires the Competition and Markets Authority (CMA) to publish advice and information about the effect of EU law on provisions of that Act. In the Government’s view, the:

‘reference and the definition of ‘EU law’ in section 171 will need amending or repealing to reflect the fact that EU law will no longer apply once the UK exits the EU.’

It seems to us that there would be merit in the GRB providing new meaning for common terms wherever possible. For example, it seems to us that ‘EU law’ could generally be interpreted as meaning:

‘EU-derived law which continues to apply post-Brexit by virtue of the GRB’.It is difficult to see what else that term could mean, post-Brexit.

Similarly, the White Paper states that the Government will need:

‘power to transfer to UK bodies or ministers powers that are contained in EU-derived law and which are currently exercised by EU bodies’.

The example given in the White Paper is the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 which require an opinion to be obtained from the European Commission on certain offshore oil and gas projects. The White Paper states that:

‘the power to correct the law would allow the Government to amend our domestic legislation to either replace the reference to the Commission with a UK body or remove this requirement completely’.

The more recently published Conservative Manifesto might indicate a slight change of position: it refers (p 37) to:

‘additional bills [as opposed to a GRB provision] to ensure that when we have left the EU there is a clear statutory basis for United Kingdom authorities to exercise powers that are currently exercised through EU law and institutions’.

Prior to the publication of the White Paper, it had been suggested that the GRB could aim to include a general provision or Schedule which identified which UK bodies or ministers (perhaps, in the above example, BEIS) would be assuming responsibility from their EU equivalents, again, that would certainly have provided some ‘high level’ clarity from the date the GRB came into force. An alternative suggestion is for the GRB to contain a provision under which a new general UK institutional framework can be provided.

The Government’s preferred approach is to make such corrections on a case by case basis. That might provide greater clarity in the long run, but seems likely to leave many sectors entirely ‘in the dark’ until the specific changes are made.

‘Gonna bring it on home, Bring it on home to you, Watch out, watch out’ (Led Zeppelin, Bring It On Home)

 

 

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