In her keynote speech at the Conservative Party Conference, Prime Minister Theresa May set out the latest plans for Brexit and the process for triggering Article 50 in the next six months. While these perhaps add a little more detail to the tautological statement "Brexit means Brexit", there are still many questions as to what Brexit will actually look like, and initial indications suggest that the "Great Repeal Bill" will have very little effect.
This is a follow up to our previous posts Brexit & the Constitution – a Gordian knot of impenetrable steel and Brexit: where are we now?.
On 2 October Theresa May set out her vision of Brexit, announcing that the Government would trigger Article 50 by the end of March 2017.
Assuming that the Supreme Court finds in the Government's favour in the Brexit judicial review this week and Article 50 is triggered by the end of March 2017, the Prime Minister has announced that the Queen's Speech in May will include the so-called "Great Repeal Bill". Presumably this title comes from the quality, rather than the quantity, of repeals intended, as from her speech it would appear that this will involve "only" the repeal of the European Communities Act 1972 (the "ECA", which is the basis for the inclusion of all EU law in the UK), while keeping all EU law in place as it is on the day before Brexit until it can be reviewed (and where necessary repealed or amended).
There are a number of problems with this plan. First of all, despite the Bill being put before Parliament in May 2017 and potentially receiving Royal Assent by the end of 2017, the Act would not come into force until the date of Brexit itself, which (as noted above), may not happen until early 2019. As such, the Act may sit on the statute books for up to two years (or longer if Parliamentary assent for Article 50 is required) without having any effect. As Brexit negotiations develop over that period we will get a clearer picture of what the legal and economic picture will actually look like post-EU, which may be very different from what we envisage now. Drafting the Act now may well prove to be a waste of resources and legislative time until we have fully engaged in the negotiation process, with the possibility that by the time the Act comes into force, much of it will be redundant.
Secondly, despite being called the Great Repeal Bill, it will keep all EU law already part of UK law in force, until such point as each provision is reviewed by Parliament. The initial problem with this is that, as above, by the time negotiations have concluded (or at least agreed on the substantive points), Brexit may well look very different, and the Bill may need substantial amendments before coming into force. Politically, it is not hard to see that many people who voted for Brexit will be dissatisfied with a position where, despite voting to leave the EU, all EU law actually remains in place, at least for the time being.
Thirdly, this 'time being' could be a very long time. Estimates for how long it would take to review the position of every reference to EU law already on the statute books vary widely. Even for those statutes that specifically reference EU legislation, it would be necessary to assess whether the UK is bound to follow this by any other treaty or international agreement, and then decide what should exist in its place. Furthermore, many parts of UK law, particularly those deriving from Directives, may be as a result of EU law without ever actually mentioning keywords such as "EU", "Directive" or "Regulation". This will make the process of detangling EU law from UK law even more complex.
How this detangling process would take place is also complex. Theresa May's speech suggested that "any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate". Unless Parliament does nothing but review EU legislation for at least the remainder of this Parliament (and quite possibly a further Parliament), this level of scrutiny appears unlikely. Rather, it seems almost inevitable that secondary legislation would be required, unless Parliament wishes to vote on the removal of every mention of the word "Directive" in every statute since 1972. This may also be somewhat unfortunate for the Government given its previous reticence on the scrutiny of statutory instruments, as we have discussed previously.
There are also more technical points to consider. For instance, in the period between Brexit and every provision of EU law being considered by Parliament, UK law will still refer to EU law. However, the Prime Minister has already suggested that the Great Repeal Bill will remove the role of the European Court of Justice and leave UK courts to interpret EU law. This risks a situation whereby the UK courts interpret a measure of EU law differently to the ECJ; when attempting to co-operate with a state still in the EU. This could lead to a fundamental incompatibility which may be very difficult to reconcile in practical terms. In addition, the Brexit negotiations will need to deal with how the UK will co-operate with EU institutions where UK law will still refer to EU systems beyond Brexit. Beyond that, considerations around matters such as the mutual recognition of qualifications and notified bodies (whose arrangements rely only in part on legislation) will need to be dealt with pragmatically.
Finally, there will inevitably be discussion around the role of the devolved administrations. In her speech, the Prime Minister made it clear that Brexit is the responsibility of Westminster, although the devolved administrations would be consulted. The Scottish Government has been particularly vociferous in its intentions on what Brexit would look like outside of England, and these are very different from those of Mrs May. The legal position will be different for each administration, and each position will be complex. For example, the Scotland Act 1998 states that relations with the EU and amendments to (the crucial parts of) the ECA are reserved to the Westminster Government. However, the Scotland Act itself would need to be amended with regard to the references to the ECA and European Court of Justice references, and to do that without the consent of the Scottish Parliament is likely to precipitate further constitutional headaches.
While Theresa May's speech gives us some concept of what form of Brexit is envisaged, what we end up with could still be very different from what we want. In promulgating legislation dealing with the mechanics of Brexit when its shape is yet to be determined, the Government could be accused of putting the cart before the horse. To that extent, The Great Repeal Bill's significance may ultimately be little more than symbolic.