The Prime Minister’s proposed bill to “download and save” EU law upon Brexit will be more complicated than it sounds.

At the Conservative Party Conference on 2 October 2016, as well as announcing that Article 50 would be triggered by the end of March 2017 (which is now less certain, pending a Supreme Court decision), the Prime Minister announced plans for a “Great Repeal Bill”.

The Bill would be passed in advance, and take effect upon the point of exit from the EU (currently planned for 2019), repealing the European Communities Act 1972 (ECA), the act of parliament that gives effect to EU law in the UK.

However, because so much of UK law is derived from EU law, the Bill is also intended to incorporate existing EU-based law into UK law, despite the repeal of the ECA:

“As we repeal the European Communities Act, we will convert the ‘acquis’ – that is, the body of existing EU law – into British law … by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate.”

Mark Durkan, MP for Foyle, characterised the Bill as, “in essence the great download and save Bill for day one of Brexit,” but went on to ask, “who controls the delete key thereafter as far as these rights and key standards are concerned?”

A House of Commons briefing paper published on 21 November 2016 (Paper) explores that and other challenges facing the drafters of the Bill.

Likely key features

The Paper summarises the key features expected to be included in the bill:

• A provision causing the Bill to come into force on the day Britain leaves the EU (Brexit Day).
• Provisions to save secondary legislation that previously implemented EU obligations, such as directives, under the ECA.
• A broadly-framed provision transferring all applicable EU law into domestic law on Brexit Day.
• Delegated powers enabling ministers to make changes to primary and secondary legislation (Henry VIII powers) to give effect to the withdrawal agreement and legislation which has ceased to have effect.
• A procedure for parliamentary scrutiny of such powers.
• A schedule listing primary legislation which is to be repealed as being no longer required upon Brexit.

Issues

The Paper identifies a number of issues, many of which have also been raised by members of parliament and legal commentators:

• Much of EU legislation has a cross-border element.  Until the exit terms are known, it is not clear to what extent individual provisions will be relevant.  The wider the powers granted to ministers to give effect to whatever deal the government ultimately secures, the more controversial the Bill’s passage is likely to be.
• Much legislation makes reference to and depends upon EU institutions and agencies.  For example, the European Medicines Agency is responsible for evaluating medical products.  Decisions need to be made as to whether such involvement will continue after Brexit.
• It has been said that the amount of legislative change required would tie up Parliament for years, if primary legislation was used.  Henry VIII powers will enable the massive operation of amending the British legal system to happen more quickly, but arguably at the expense of parliamentary democracy. A robust procedure for parliamentary oversight will need to be set out in the Bill itself to deal with those concerns whilst preserving the intended efficiency.
• There are a number of issues involving the devolved administrations (Scotland, Northern Ireland and Wales) and how they might be affected by the Bill.  EU law is written into the legal basis for devolution and consent may be required for changes relevant to devolved matters.  The Scottish Parliament represents a jurisdiction with a “Remain” majority, and its refusal to consent could hamper the process of Brexit.
• Those who support Brexit have made much of freeing the UK from the jurisdiction of the Court of Justice of the European Union (CJEU).  Previous judgments of the CJEU form part of the acquis communautaire, which the Prime Minister has said will be “converted” into UK law.  Furthermore, it is not clear how future judgments of the CJEU will be treated by the UK courts, where it continues to rule on the same provisions as those that have been “downloaded” into UK law.

WAB Comment

It has been reported in the press that Whitehall lawyers are struggling to draft a simple Great Repeal Bill as set out in Mrs May’s announcement.  Certainly the language now being used by government is more qualified than the wholesale conversion of the original announcement, with David Davis (Secretary of State for Exiting the European Union) using the phrase, “The Great Repeal Act will convert existing EU law into domestic law, wherever practical.”

Lawyers who are conscious of the importance of EU laws and regulations were always aware that Brexit would not be a quick and easy process. The Paper on the Great Repeal Bill shows that even apparently simple solutions are, in reality, quite complex to implement.

That is especially the case when the relationship with the EU, and the application of laws and regulations relating to EU and EEA institutions, could vary considerably depending on the terms of a future exit agreement.  At present, the negotiations in respect of that agreement have not yet started whilst the UK government resolutely refuses to state its aims.

See the House of Commons briefing paper here and our previous articles on Brexit here.