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11 July 2017

14: Great Repeal Bill – The devil is in the details

The (Great) Repeal Bill will be published this Thursday, 13 July.

While we wait for the GRB to appear, we will return to our mini-series looking at particular elements of the ‘acquis communautaire’ (the ‘body of EU law’) which the GRB will transpose into UK law.

Now, ask the man in the street to give an example of EU law, and the chances are he’ll talk about EU Regulations – possibly a specific one laying down quality standards for bananas.

EU Regulations are made by the European Commission or the European Council (individually or with the European Parliament) – the former outnumber the latter roughly 2:1 – and there are currently about 5,400 of them (plus some 2,200 delegated and implementing regulations). Commission regulations are generally of an implementing, administrative and technical nature, and cover a huge range of subjects: product standards and classifications, health and safety conditions, inspection rules, authorizations for marketed products and practices, import duties and so on. Council/Parliament regulations tend to be broader, laying down a legal framework in a particular policy sphere.

EU regulations have ‘direct effect’ in the UK (under European Communities Act 1972 (ECA) and TFEU, article 288). This means that, without any further action on the part of the UK Government or Parliament, an EU Regulation’s legal effects are ‘simultaneously, automatically and uniformly binding’ in the UK, as they are in all other Member States. However, sometimes the requirements of EU Regulations need further UK implementation (as with the new EU Port Services Regulation), eg if existing UK law is inconsistent with those Regulations, it must be repealed/amended. In the UK, this is often done by non-legislative or ‘soft law’ measures such as administrative (and domestic) rules and regulations.

(EU Regulations and UK Regulations should not be confused. The latter are a form of UK statutory instrument, eg the Air Navigation (Restriction of Flying) (Cardiff) (Amendment) Regulations 2017 were made by the Secretary of State for Transport on 10 May 2017 to restrict flying in the vicinity of Cardiff during the UEFA Champions League Final – they are not applicable across the EU).

As previously explained, on the repeal of the ECA by the GRB, if no specific provision were made to ‘save’ EU Regulations, they would no longer apply in the UK. The Government considers (correctly, in our view) that this is would leave an unacceptable ‘black hole’ in the statute book. So the GRB White Paper makes clear that the EU Regulations will be transposed into domestic law (para 2.8):

‘[T]he Bill will make clear that EU regulations – as they applied in the UK the moment before we left the EU – will be converted into domestic law by the Bill and will continue to apply until legislators in the UK decide otherwise.’

The Government has made clear that this will not be done by ‘copying out’ EU regulations into UK law regulation by regulation. Instead, the GRB will contain a general ‘transposition’ provision. And it will then be for the Government and Parliament to modify or repeal the EU-derived Regulations in the future. The twin challenges for Government are the scale and complexity of the task.

The scale can be seen from the Appendix to this Parliamentary research briefing, which lists the number of EU Regulations currently in force by category (the number in brackets is the number of regulations in that category):

  • General, financial and institutional matters (239);
  • Customs Union and free movement of goods (526);
  • Agriculture (922);
  • Fisheries (1122);
  • Freedom of movement for workers and social policy (91);
  • Right of establishment and freedom to provide services (50);
  • Transport policy (175);
  • Competition policy (31);
  • Taxation (12);
  • Economic and monetary policy and free movement of capital (108);
  • External relations (643);
  • Energy (61);
  • Industrial policy and internal market (372);
  • Regional policy and coordination of structural instruments (64);
  • Environment, consumers and health protection (527);
  • Science, information, education, culture (71);
  • Law relating to undertakings (26);
  • Common Foreign and Security Policy (48);
  • Area of Freedom, Security and Justice (35); and
  • People’s Europe (4).

That is a lot of law to transpose, touching almost every aspect of life – and it seems inconceivable the details could be properly and accurately reviewed before the Brexit date of 29 March 2017.

Review is certainly necessary. Significant sectors of the UK economy have expressed concerns that a ‘one-line transposition’ of ‘their’ EU Regulations will not work. Before the election, the House of Commons Environmental Audit Committee (EAC) published its report on chemicals regulation post-Brexit (the UK’s second largest export sector to the EU, selling almost £15bn of chemical products into the European single market a year). One of the EAC’s key findings was that the EU REACH Regulation 2006, which currently applies, could not be transposed directly into UK law by a ‘deemed to apply’ provision in the GRB. In part, this is because the industry wants to remain involved in the EU’s registration process for chemicals – so UK companies can share testing data and costs with EU companies, and enter the EU market without double registration – and the European Chemicals Agency, because establishing a stand-alone UK system of chemicals regulation would be expensive (‘tens of millions’ of pounds, accepts the Government). Multiply these difficulties across the economy (not least the banking and financial sectors) and the scale of the task becomes clear. (We have previously reported on the position of the UK’s car industry – the UK’s largest export sector to the EU.)

Government departments are concerned too. Defra has acknowledged that roughly a third of EU environmental legislation cannot be simply transposed onto the UK statute book due to a number of technical challenges concerning enforcement and accountability. Moreover, while there is a common EU framework, most environmental policy in the UK is devolved. Each devolved administration has its own approaches which are broadly similar in theme, but diverge in terms of specific targets and regulation.

Complexity arises because the retention of EU Regulations will depend largely on the outcome of the EU-UK withdrawal negotiations and the UK’s future relationship with the EU. To take one category above, there are 1122 EU Regulations governing fisheries. The extent to which these will be retained after Brexit depends on the extent to which the UK will continue to apply the Common Fisheries Policy (CFP), which applies up to 200 miles from the UK coast or elements of it (a Parliamentary Briefing looking at the post-Brexit options is here).

Before the General Election, a leaked letter from Environment Minister Andrea Leadsom to the Scottish Fishermen’s Federation said that ‘no decision has yet been made on the extent to which the EU legislation governing the common fisheries policy will be incorporated into domestic law’ but ‘as we leave, we will look to disapply the key elements of the CFP that are most unpopular and unworkable for the UK as a coastal state, including those on mutual access and EU-level quota setting.’ The Government has since announced (in the Queen’s Speech) its intention to introduce a Fisheries Bill which will ‘Enable the UK to control access to its waters and set UK fishing quotas once it has left the EU’ (but has provided little further detail) and, this week, that it will leave the 1964 London Convention, which governs fishing rights in the area 6 to 12 nautical miles from the UK’s coast (although some say it doesn’t, because it had already been superseded by the CFP).

(‘He’s in the corner of the room you lock the door to, He’s on the dashboards of the cars that you pass by, He’s in your suitcase or your purse when you leave ’em … The Devil is in the Details’ (The Broken Family Band, Devil in the Details)
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