The Great Repeal Bill

PRACTICE AREA GROUP:
Corporate

The European Union (Withdrawal) Bill (also known as the “Great Repeal Bill”) has now progressed to the Committee Stage. It is one of the most anticipated pieces of legislation in recent years and will ultimately be one of the most important pieces of legislation to emerge from the United Kingdom.

Key Issues

The headline features of the Great Repeal Bill are that it will (after the exit day):

  • overturn the European Communities Act 1972;
  • end the supremacy of EU law in the United Kingdom; and
  • end the jurisdiction of the European Court of Justice ("ECJ") over the United Kingdom’s domestic laws.

To avoid a huge gap appearing in the UK statute book on exit day, the Great Repeal Bill will, subject to limited exceptions, convert the existing body of EU law into domestic law and preserve UK laws that implement EU obligations.  Following Brexit, the UK will decide which elements of this retained law to keep, amend or repeal.

The ECJ

Decisions of the ECJ delivered prior to the exit day will continue to have precedential effect in respect of the interpretation of any enactment or rule of law passed or made before the exit day. Going forward, this retained jurisprudence of the ECJ will enjoy precedential value equivalent to decisions of the UK Supreme Court ("UKSC") and the High Court of Justiciary ("HCJ") (the highest criminal court in Scotland).  Unlike other UK courts and tribunals, the UKSC and the HCJ (where there is no further appeal to the UKSC) will be free to choose to apply or depart from previous decisions of the ECJ, provided that the same test is applied as is applied when deciding when to depart from their own case law.

Whilst the Great Repeal Bill ends the jurisdiction of the ECJ in the UK after the exit day, it also states that UK courts and tribunals may have regard to post-exit day decisions emanating from the ECJ if they consider it “appropriate” to do so.

The Correcting Powers

One of the more contentious aspects of the Great Repeal Bill is the proposal to allow primary legislation to be amended by way of secondary legislation, the so-called “Correcting Powers” (also known as the “Henry VIII Powers”), to deal with “deficiencies” arising from the withdrawal. This power will allow the UK Government to amend primary legislation without full parliamentary scrutiny. In an attempt to allay fears about the use (or abuse) of these powers, the Great Repeal Bill proposes a two year time limit on the “Correcting Powers”.  Once this time frame has elapsed the procedure to amend primary legislation to deal with any remaining deficiencies (however minor) will become much more time consuming as it will have to go through the traditional parliamentary process. It is highly unlikely that all legislative gaps would have exposed themselves within the two year period.

While politicians and commentators have understandably expressed misgivings about the inclusion of the “Correcting Powers” we have seen in Ireland how this type of provision can be helpful when used appropriately. The Irish Credit Institution Stabilisation Act in Ireland allowed action to be taken during the financial crisis to stabilise the Irish banks notwithstanding that these actions would otherwise have been prohibited by other legislation.

Negotiations with the EU

In advance of the withdrawal negotiations scheduled to take place next month, the UK has published a number of papers setting out its proposals for its future relationship with the EU. The EU has issued its papers in response. The papers released thus far cover issues such as the Northern Ireland border with the Republic of Ireland, customs and trade, intellectual property rights and civil judicial co-operation.  The positions of the EU and UK as set out in these papers are still quite far apart and if a deal is to be agreed before the expiry of the two year notice period, a sustained period of negotiation will be required.  This is probably unlikely.  What is more likely is that a further transitional period to agree the detail of the exit deal will be agreed before the expiry of the notice period.  Without that, it is becoming increasingly difficult to see how anything other than a “hard Brexit” could occur at the end of that notice period.