Richard Ekins

The Great Repeal Bill will bring both continuity and change

The Great Repeal Bill will bring both continuity and change
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The Government has set out the White Paper in advance of its proposed Great Repeal Bill.  The Bill is not necessary for the UK to leave the EU.  The Prime Minister has triggered Article 50, relying on the European Union (Notification of Withdrawal) Act 2017, and the UK is now on its way out of the EU.  When the Article 50 process ends, the EU Treaties will cease to apply to the UK.  

The expiry of the Treaties will change UK law in significant ways.  The Great Repeal Bill is intended to minimise legal discontinuity and to maximise certainty for business and citizens.  If enacted, it will repeal the European Communities Act 1972, the Act which has made EU law take direct effect in the UK and which has empowered much secondary legislation to implement EU law.

But in the same breath as repealing the 1972 Act, the Great Repeal Act (as it will be then) will transpose existing EU law into UK law.  It will then be open to UK institutions to change this newly transposed law in due course.  The Great Repeal Bill will be enacted in advance of the UK ceasing to be a member of the EU but the repeal of the 1972 Act will not take effect until that day.

In other words, the Bill is at least as much about continuity as it is about change.  The White Paper disavows any intention to make major policy changes by way of the Bill.  Major changes will instead be introduced by way of other bills, including in relation to customs and immigration law.

EU law comes to bear in the UK in different ways.  The Bill will convert directly applicable EU regulations, and rights arising under the Treaties, into UK law.  It will also maintain the validity of UK secondary legislation implementing EU law and give effect to past decisions of the Court of Justice of the EU (not to be confused with the European Court of Human Rights). 

Parts of this exercise are straightforward, but other parts definitely are not.  Some EU law might be redundant after Brexit, or unworkable, or contrary to the national interest.  There will be a need then for adjustment to some existing EU law before it can be transposed into UK law.  The proposed Bill will address this need by empowering ministers and devolved institutions to change the statute book to address problems that arise in this process of transposition.   

Powers of this kind, often known as Henry VIII clauses, are rightly controversial.  The trick will be whether they can be limited to incidental changes, avoiding major policy reform, and whether it is feasible for Parliament to scrutinise effectively their use or misuse.  The design of these powers will be important, not least to minimise the risk that the merits of legislative reform ends up being decided in court rather than by political authorities. 

Other complications abound.  The devolved institutions are currently limited by EU law.  The eventual Bill may need to determine to what extent devolved institutions should be free to amend or repeal the newly transposed law. 

The Bill contemplates the Supreme Court sometimes overturning Court of Justice case law.  This may improve the quality of the law, but risks much litigation and legal uncertainty.  All else equal, it would be much better for the Court of Justice’s mistakes to be overruled expressly by legislators.

The Great Repeal Bill is not necessary to restore parliamentary sovereignty.  It has always been open to Parliament to legislate as it sees fit, including inconsistently with EU law.  But this was and is a power that it was in practice very difficult to use while a member of the EU.  

What the Bill proposes is to remove the 1972 Act’s rule of priority, which gives effect to EU law over UK law in the event of inconsistency between the two of them.  The Bill proposes to maintain that rule in relation to old legislation – doing otherwise would be to change the law – but new legislation enacted after Brexit will overrule the transposed EU law.

The White Paper’s stress is on continuity.  However, one important change is contemplated, for the proposal is not to transpose the EU Charter of Fundamental Rights into UK law.  The Government reasons that the Charter only applies when implementing EU law, so it naturally falls away when the UK leaves. 

One might add that the Charter invites courts to oversee and overrule lawmaking in a way that is hostile to the British tradition of parliamentary democracy.  It is not much of an improvement to substitute over-mighty British judges for European judges and the Government is quite right to propose that the Great Repeal Bill should bring the Charter to an end.

Professor Richard Ekins is a Tutorial Fellow in Law at St John's College, Oxford and Head of Policy Exchange’s Judicial Power Project