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30 March 2017

The Great Repeal Bill and Article 50

Parliamentary Agents, Nicholas Evans and David Mundy, comment on the Great Repeal Bill following the news that Theresa May triggered Article 50 on 29 March 2017.

David Mundy, Partner and Parliamentary Agent:

‘So Article 50 has been triggered and the UK’s new relationship with Europe (and with its own component nations) is now to be forged.
It seems likely that the promised Great Repeal Bill will preserve the status quo at least in the short term by preserving EU legislation until the detail can be worked out.
So we can expect “freezing” provisions which say that the law will remain the same as under EU law until such time as it is changed once the detail of our exit has been negotiated.
One crucial constitutional area that will receive close scrutiny-and potential challenge-is the extent to which the Great Repeal Act confers powers to change existing Acts of Parliament by delegated legislation-that is with only limited Parliamentary scrutiny. These are known as Henry VIII powers. There’s an enormous volume of European law that will necessarily change. The government would find it handy to do this without promoting lengthy and contentious Bills but by using Ministerial orders or other forms of delegated legislation instead.
While there’s no doubt that full Acts of Parliament will be required to deal with “big” issues such as immigration and citizens’ rights, Parliament will need to look carefully at what “Henry VIII” powers to pass delegated legislation-with limited chance for scrutiny or debate-they ought to bestow on Ministers to pass new laws, in this extraordinary situation.’

Nicholas Evans, Partner and Parliamentary Agent:

‘The publication of the Great Repeal Bill white paper will be the last time when the Brexit process is in the Government’s control. Now that Article 50 has been triggered, future progress depends entirely on negotiations with our former partners, all with their own particular interests to accommodate. Over the next 18 months, the PM is likely to look at her defeats in the Supreme Court case and the House of Lords as the easy bit.’
‘The first thing to note is that, like other Bills, and unlike the Government’s preferred process for article 50, the Great Repeal Bill will have to be approved by Parliament. There will need to be votes from both Houses of Parliament in favour of both the principles and the details of the Bill.
EU law has had effect in the UK for over 40 years and no doubt some of this will have to remain in force, even after Brexit. Some EU laws give effect to international treaty obligations which will continue to bind the UK, some set the standards for goods and other products that UK producers will need to meet if they are to sell into the EU, and some simply have no British domestic equivalents. All of these will need to stay in place, albeit converted into UK laws, to avoid a legal vacuum. Some other EU laws will remain in place as part of the Brexit agreements if the UK agrees to remain part of EU-wide organisations, for instance such as the European Medicines Agency. As the public bill committee in the Commons gives members of the public the chance to give evidence about the scope of legislation, this could be a chance for outside groups to seek to protect EU laws of particular interest to them. More cynically, some EU laws are seen by civil servants as a useful constraint on their Ministers, and so they will be seeking to keep them in place after Brexit. But none of this is known in detail yet – and much may not be known even after the Brexit negotiations conclude – so very few details will be able to be included in the Bill.
While the UK remains a member of the EU, we are bound by its rules, and the PM has regularly stated the Government’s intention for the UK to “be a fully engaged and active member of the EU until the point at which we leave.” Repealing EU laws now would put the UK in breach of those rules, so the Great Reform Bill will not have any immediate effect on EU law, which will continue to bind the UK until that point.
So the Bill is likely to be brief: clause 1 of the Great Repeal Bill will no doubt repeal the European Communities Act 1972 (which provides for EU law to have effect in the UK, and gives the European Court of Justice its primacy) from the date of Brexit. The Bill will then provide for all EU laws in effect before that date to continue in force until repealed or replaced, as purely domestic law. Because of the amount of Parliamentary time that it would take to pass a new Act for each current EU law, the Bill is also likely to include a wide-ranging power for Ministers to repeal or replace those laws. This will be an extremely wide-ranging “Henry VIII” power to change primary legislation by order. Ironically enough, the most likely precedent is the power in the European Communities Act for Ministers to amend UK laws to give effect to EU obligations. However, this power is likely to be even wider, both to repatriate enforcement mechanisms (as EU bodies won’t be enforcing the UK’s version of its regulations), and to make future changes. Parliament is likely to want to impose a number of safeguards on the exercise of this power. Devolved governments are also likely to want to see safeguards, as a lot of EU law relates to devolved matters, such as agriculture or the environment, and so the Bill may have to explain how these will be dealt with too. Both Parliament and the devolved bodies may therefore find that a vote to “take back control” has resulted in control moving from them to Whitehall.’

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