Leaving the European Union will require major changes to the statute book. On 2 October 2016, the Prime Minister announced plans to introduce a “Great Repeal Bill” in the next Queen's Speech, which will repeal the European Communities Act 1972 (the ECA) and incorporate (transpose) European Union law into domestic law, “wherever practical”. The Government has indicated that these legal changes within the Bill would take effect on “Brexit Day”: the day the UK officially leaves the European Union. The Great Repeal Bill has not yet been published. This paper considers issues likely to be raised in the Bill. It works on the basis of comments made by senior members of the Government. The Government has also indicated that the Great Repeal Bill will contain delegated powers to enable the Government to adapt any laws on the statute book that originate from the EU so as to fit the UK’s new relationship with the EU. This may require major swathes of the statute book to be assessed to determine which laws will be able to function after Brexit day. The House of Commons Library has estimated that 13.2% of UK primary and secondary legislation enacted between 1993 and 2004 was EU related. The review of all EU-related legislation, as well as that which will be transposed by the Great Repeal Bill, makes this potentially one of the largest legislative projects ever undertaken in the UK. It is not yet known when the legislative changes will be made to give effect to any withdrawal agreement made with the EU. This briefing addresses each of these potential elements of the Great Repeal Bill: a) The repeal of the ECA; b) The transposition of EU law; c) The proposed use of delegated powers. The Government has emphasised that the Great Repeal Bill would be the first legislative step in the process of leaving the EU. The Government has indicated that the Bill will be designed to re-establish control over law-making by repealing the ECA and to provide some certainty over the content of the statute book while the UK negotiates its exit from the EU. Once the UK has left, the next legislative stage would be for Government and Parliament to decide whether to keep any EU-derived law in UK domestic law. These plans have raised constitutional and legal questions, including: a) Will the Bill seek to remove references to EU institutions and agencies from the EU law which it transposes into domestic law?; b) Will the Bill include a Henry VIII power to enable ministers to make changes to primary legislation which gives effect to EU law?; c) Will the Bill require a legislative consent motion from the devolved legislatures?; d) Will the judgments of the Court of Justice of the European Union (CJEU) continue to be relied on in domestic courts after transposition? At this stage it is difficult to know what the UK’s statute book will look like in the medium term after the UK has left the European Union. This is in part because of the as yet unknown nature and content of any withdrawal agreement with the EU, which is central to the question of how much EU law is to be retained after Brexit. Leaving the European Union does not necessarily require all EU law to be removed from the statute book. One of the stated aims of the Great Repeal Bill is to prevent black holes appearing in the statute book. A Government Report published prior to the referendum emphasised the need “to maintain a robust legal and regulatory framework where that had previously depended on EU laws”. The Government has already indicated that the intention is to retain EU related legislation in certain areas, such as employment law. Since the enactment of the ECA, EU law has been a major part of the UK’s constitutional and legal framework. EU law is currently incorporated into the UK’s legal system in a number of different ways. For example, the Treaties and EU Regulations are incorporated into domestic law by the ECA and are therefore directly applicable, whereas EU directives are implemented by Parliament through both primary and secondary legislation. This distinction between directly applicable EU law and EU law already implemented will have implications for the process of legislating for Brexit.
European Parliament
