The Great Repeal Bill

Brexit

What is the Great Repeal Bill?

At the 2016 Conservative Party Conference, Theresa May announced that her government would introduce a Great Repeal Bill to end the supremacy of EU law in the UK, a crucial part of leaving the European Union.

The Government released a White Paper for the bill on 30 March 2017.

What will it do?

According to the Government’s White Paper, the bill will do three things:

  1. Repeal the European Communities Act 1972. This legislation provides legal authority for EU law to have effect as national law in the UK. This will no longer be the case after Brexit.
  2. Bring all EU laws onto the UK books. This means that laws and regulations made over the past 40 years while the UK was a member of the EU will continue to apply after the Prime Minister triggered Article 50 on 29 March.
  3. Create powers to make secondary legislation. Technical problems will arise as EU laws are put on the statute book. For instance, many EU laws mention EU institutions in which the UK will no longer participate after Brexit, or mention “EU law” itself, which will not be part of the UK legal system after Brexit. There will not be time for Parliament to scrutinise every change, so the bill will give ministers some powers to make these changes by secondary legislation, which is subject to less scrutiny by MPs.

If the UK is leaving the EU, why is it keeping laws made by the EU?

EU law covers areas such as environmental regulation, workers’ rights, and the regulation of financial services. Without the Great Repeal Bill, when the UK leaves the EU, all these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in the UK statute book and leading to uncertainty and confusion. By carrying EU laws over into UK law, the Government plans to provide for what David Davis, Secretary of State for Exiting the EU, calls ‘a calm and orderly exit’ from the EU, while giving the Government and Parliament time to review, amend or scrap these laws in future.

What did we learn from the White Paper?

EU Law

The White Paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster has to be compatible with those passed in Brussels.

The document also says that past judgements of the European Court of Justice (ECJ) will be downgraded in status after Brexit.

ECJ judgements will have no role in the interpretation of laws passed by Parliament after the UK has left the EU.

Pre-Brexit ECJ judgements will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases.

The role of post-Brexit ECJ judgements on pre-Brexit laws is still unclear.

Delegated Powers

The White Paper argues that a “prohibitively large amount of primary legislation” would be required to make all the necessary changes to the body of EU law.

Therefore, it will “provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The Government acknowledges there will need to be some constraints on how ministers can use secondary legislation to change the law.

However, the White Paper is vague about what these constraints will be. For instance, the White Paper acknowledges that ministers’ new powers will have to be time limited, but does not discuss what these time limits will be.

The Government is seeking a “discussion between Government and Parliament as to the most   pragmatic and effective approach to take” on powers.

Devolution

The White Paper commits to “intensive discussions with the devolved administrations” about how policy powers repatriated to the UK from the EU will be distributed between the nations of the UK.

It is not clear if the consent (via Sewel motions) of the devolved parliaments/assemblies needs to be sought before passage of the bill.

When will it be published?

The Government says that the bill will be included in the next Queen’s Speech and introduced in the next parliamentary session. The session is due to begin in May or June 2017.

When will it come into force?

The plan is for the bill to complete its passage through Parliament well before the point at which the UK leaves, but for it to include ‘commencement provisions’ enabling ministers to bring it into force at a moment of their choosing. The Government says that the bill will come into force ‘from the day we leave the European Union’. This will be on 29 March 2019, although if Article 50 negotiations are extended, it may be later.

Will Parliament get to vote on it?

MPs and peers will get a chance to scrutinise, debate and vote on the bill, as part of the normal process of parliamentary scrutiny.

What will the scrutiny process involve?

David Davis says the bill will not be published for pre-legislative scrutiny.

Once it is introduced to Parliament, it will be scrutinised through debates in the Houses of Commons and Lords, and more detailed line-by-line scrutiny in select committees. Amendments can be made to the bill. Both the Commons and the Lords will need to approve the bill, with any amendments, before it can be passed.

Even if the bill is relatively short, the scrutiny process may take some time if previous examples of EU bills are any guide. For example, the legislation to ratify the Maastricht Treaty was scrutinised for a total of 41 days in both Houses.

Will it really be called the Great Repeal Bill?

Parliamentary rules make it very unlikely that the bill will in fact be called the Great Repeal Bill. It is much more likely to be called something like the European Union Bill.