Miller and the Great Repeal Bill

How will the Great Repeal Bill change the law in the UK? This question looms large in the legal arguments before the Supreme Court in Miller, taking place this week. The question was raised in exchanges between Lord Carnwath, the Supreme Court Justice, and James Eadie QC, First Treasury Counsel representing the Government, during the first day of proceedings.

Preparing the statute book for exiting the European Union is arguably the greatest legislative challenge ever attempted by the UK Government. The Government has stated that the Bill is designed to ensure that the UK’s exit is “smooth and orderly”. The Great Repeal Bill hasn’t yet been published, however you can read about it in our briefing: Legislating for Brexit: the Great Repeal Bill.

So what are the connections between the Great Repeal Bill and the Miller case?

Parliament and the prerogative

Let’s first remind ourselves of the High Court judgment in November. The judgment accepted Miller’s submission that the Great Repeal Bill is not the legal mechanism which will remove the rights protected by the European Communities Act 1972 (ECA). The rights in the ECA, according to Lord Pannick, representing Miller before the High Court, “will fall away as a consequence of the United Kingdom leaving the EU”, and not by virtue of the enactment of the Great Repeal Bill.

The High Court’s judgment responded by stating that Parliament had created “rights of major importance” by enacting the ECA: the fact that the text of the relevant rights is set out in the EU Treaties didn’t mean that the rights given effect by the ECA should be treated differently from any other right protected by Parliament. This led to the Court’s central conclusion that these rights cannot be removed by the Crown using its prerogative powers.

What is the Government arguing in the Supreme Court?

The Government’s written submission to the Supreme Court contends that the High Court was wrong to state that the ECA “creates domestic legal rights”. It states that the ECA is the leading example of “ambulatory” legislation, whereby the effect of international legal rights and obligations changes according to how these rights and obligations are changed at the international level. As such the ECA is the conduit for international legal rights rather than the source of domestic legal rights.

The Government’s case points to the conclusion of Maguire J in the Belfast High Court that the Article 50 notice changes nothing in domestic law.

The Government’s submission concludes by setting out Parliament’s role in the Brexit process. Parliament will be asked to legislate for the UK’s post-withdrawal position in three main ways:

  • To convert certain EU law rights and obligations, which are current directly applicable through section 2(1) ECA, into domestic law “where possible and appropriate”;
  • To consider the amendment or repeal of the ECA;
  • To consider the future of both “freestanding” statutes that give effect to EU law and those enacted to convert directly applicable law.

The lead respondents, representing Miller, counter these points in their written submission to the Supreme Court by reasserting the argument that it is the notification, and not the Great Repeal Bill, which will “cause the destruction of statutory rights”.

Avoiding “black holes” in the statute book

The disagreement over how EU law is given effect in domestic law by the ECA is indicative of the difficulty and complexity facing the Government in devising legislation to leave the EU.

When the UK leaves the EU, a large of body of EU law which is currently directly applicable, via section 2(1) of the ECA, will cease to have effect. A central aim of the Great Repeal Bill will be to prevent “black holes” appearing in the statute book. As such, the aim is to convert some of the directly applicable EU law into domestic law so that these holes don’t appear on the day the UK leaves the EU. But precisely how these holes will be filled is not yet known.

What are the options for transposing laws?

There are number of options available to the Government via the Great Repeal Bill. These could include the following:

  • the Bill could transpose the relevant EU law wholesale and then set out a list of exceptions;
  • the Bill could enable Ministers, through delegated powers, to decide which directly applicable laws should be kept;
  • the Bill could specify those directly applicable provisions that the UK wishes to retain.

The Bill could combine these approaches, or use an entirely different approach. Each option would present different challenges for Parliament.

How much of the transposition is included on the face on the Bill, or left to delegated legislation, is likely to be affected by the timing of legislation for Brexit. Transposition, and legislating for Brexit generally, is likely to be a multi-stage process. As the Government has noted, the powers in the Great Repeal Bill could be used to enable it to legislate “to take account of the negotiations with the EU as they proceed”. At this stage it is not yet known how, or to what extent, the Great Repeal Bill will enable this coordination, with the negotiations with EU, to take place.

See our briefing – Legislating for Brexit: the Great Repeal Bill – for further detail.

Image: UK Supreme Court by Shark Attacks licensed under Creative Commons Attribution 2.0 Generic (CC by 2.0)