The Department for Exiting the European Union (DExEU) yesterday published the white paper for the Great Repeal Bill, which is intended to encapsulate European law from British legislation without making any policy changes until these can be approved by Parliament. This was always going to be a significant challenge, and now the details have been provided it seems the Bill will not quite do what it says on the tin.
The Great Repeal Bill is intended to capture EU law as it stands on 'Brexit Day' (the day Brexit takes effect), so that each policy and position can subsequently be considered at a later date, under less time pressure. However, as many legal commentators have been predicting, even this is far from a simple undertaking. The White Paper acknowledges that one piece of legislation cannot do all of this; as well as the so-called Great Repeal Bill there will be several other pieces of legislation when new policies will have to come into force on Brexit Day. The examples given are a new Customs Act and a new Immigration Act. In addition, the White Paper predicts that 800 to 1,000 statutory instruments (pieces of legislation not passed by Parliament) will be required to implement Brexit; even if this estimate is not exceeded, this is close to the average total number of Instruments normally produced in a year.
The concern with this is, as the White Paper acknowledges, balancing the speed at which legislation will be required (everything will have to come into force on Brexit Day, and many of the required changes will not become clear until close to the day itself) with scrutiny. As part of this, the Great Repeal Bill will contain a vast "Henry VIII clause" allowing statutory instruments to change primary legislation (i.e. legislation that has been passed by Parliament) which is contrary to the usual hierarchy of legislation. Further, the White Paper makes clear that 'many' of these statutory instruments will be made under a negative procedure, i.e. they will come into force unless Parliament expressly says otherwise, rather than Parliament expressly approving them.
The White Paper states that the intention of the Great Repeal Bill is to capture the position of EU law as it will stand on Brexit Day. In effect, this is not so much repealing law as ensuring that it will not just fall away when we exit the EU (and the European Communities Act is revoked). However there will be one major exception to this; the Charter of Fundamental Rights will not be transferred into UK law.
This capturing of EU law, whilst probably the best route for medium term legal certainty, is likely to upset many of those who voted for Brexit precisely in order to repeal these laws.
We foresee a number of problems with the intended content of the Great Repeal Bill. The intention is for the jurisprudence of the Court of Justice of the European Union to still be relevant in interpreting EU-derived law, however this will only be at the point of Brexit; shortly after the EU and the UK will still be using the same law, but potentially applying it differently if EU and UK case law diverge or do not keep pace with one another. In addition, the statutory instruments are intended to remove all references to EU law and EU institutions, but it is unclear how the new UK institutions required to match their EU counterparts will be created or how existing bodies, if their powers and objectives allow, will take on obligations . It is also difficult to see how that many additional statutory instruments can be created in time while still having the necessary legal scrutiny and ensuring they are consistent to prevent loopholes. Once this is done, it will be even more difficult for Parliament to provide the desired level of scrutiny, meaning there will be a reduction of the influence of Parliament over UK legislation, rather than more.
The Fieldfisher public and regulatory law group are following Brexit developments closely; please do get in touch if you would like to discuss any aspect of the Great Repeal Bill or how it will affect your sector.