Leaving the EU will require major changes to the UK’s constitutional framework and to the statute book. At the same time, repealing all EU law on the day of exit would leave “black holes” in the law governing how we live and work.

The ‘Great Repeal Bill’, which had been expected early in the 2017/18 Session of Parliament, was the previous Government’s solution to this problem. The Labour Party opposes the proposed Bill and instead argues for an “EU Rights and Protections Bill”. The Conservatives’ proposals seek to end the supremacy of EU law in the UK whilst limiting the initial changes to the statute book by converting EU law into domestic law. If the Bill is enacted, it will then be for Parliament to decide on how this body of law should be adapted for life outside the EU. Balancing the Bill’s two main aims, constitutional change and legal stability, would require ingenuity, and the Bill would most likely include complex legal mechanisms with far-reaching constitutional effects.

The shape of the Bill

The Bill would be presented as the ‘legal nuts and bolts’ necessary to give effect to Brexit. Substantive policy changes would be included in stand-alone Bills later in the Parliament, e.g. on immigration and customs.

Delegated powers would be included in the Bill to enable the Government to make secondary legislation for two main purposes:

  • ‘correcting’ EU derived law so that it functions effectively after Brexit
  • implementing the withdrawal deal

Since these are wide-ranging powers, their precise nature and the extent to which they enable effective parliamentary involvement and scrutiny may be controversial.

Major constitutional change

The Bill would repeal the European Communities Act 1972 [ECA], the legislation which sets out the UK’s relationship with the EU. The ‘pipeline’ created by the ECA, which enables UK law to be updated in line with changes made by the EU, would be cut off. On the day the UK leaves the EU, laws relating to EU membership, such as the right to vote in elections for the European Parliament, would cease to apply.

The general supremacy of EU law in the UK would be brought to an end. Laws enacted by Parliament post-Brexit would take precedence over earlier laws that originate from the EU. UK courts would no longer refer questions of EU law to the Court of Justice of the European Union [CJEU], and the UK courts would not be bound to follow new judgments given by the CJEU post-Brexit.

Avoiding black holes

The Bill would seek to achieve legislative continuity in three steps.

  • Converting the entire ‘acquis communautaire’ (the body of EU law as it stands on Brexit day) into UK law. This is a large body of law, including around 5,000 EU regulations alone.
  • Preserving the existing EU law already on the UK statute book.
  • Amending this converted and preserved law, known as EU-derived law, so that it functions effectively post-Brexit. The Bill would contain powers to enable Government Ministers to amend this law using secondary legislation.

This is a large scale and unprecedented legislative project that could require a thousand statutory instruments (secondary legislation issued by Ministers) to be enacted in a limited timeframe. The changes would include removing references to EU institutions and EU law.

The number of UK Statutory Instruments more than halved between 2014 and 2016

The right balance would need to be struck between scrutiny and speed in dealing with these statutory instruments. Some MPs and Peers may seek to restrict the correcting power so that only technical changes can be made, whilst the Government may wish to secure more legislative wriggle room. The House of Commons Procedure Committee took a keen interest in this area and has published its evidence received to date.

The Withdrawal Agreement

The Great Repeal Bill is likely to enable the Government to use secondary legislation to implement any EU withdrawal agreement. The power in the Bill could represent Parliament’s main chance to legislate for this, although the May Government also indicated that any withdrawal agreement would be subject to a vote on a motion in both Houses, after it is signed.

Would the Great Repeal Bill be enough for Parliament?

If the Bill is brought before Parliament, negotiations on the UK’s new relationship with the EU will be ongoing, and other Bills covering areas of EU competence will be due. It is therefore difficult to know precisely how much EU law would be preserved on the day the UK leaves the EU. It remains to be seen whether Parliament would feel that it is being offered enough opportunity to scrutinise the changes to the law occurring before Brexit day.

This article is part of Key Issues 2017 – a series of briefings on the topics that will take centre stage in UK and international politics in the new Parliament.

For more on the Great Repeal Bill, please see the Commons Library briefing: Legislating for Brexit: the Great Repeal Bill.

Image: Hansard by Ben Terrett; Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

The status of EU-derived law

The White Paper on the Great Repeal Bill made two important points on the status of EU-derived law post-Brexit that were designed to ensure continuity:

Historic CJEU case law will continue to have the same binding status in our courts as decisions of our own Supreme Court.

If, after exit, a conflict arises between a pre-Brexit EU law and a pre-Brexit domestic law, then the EU-derived law will continue to take precedence.