Legislating for Brexit: Statutory Instruments implementing EU law

According to data on the EU’s Eur-Lex database, there are at present around 19,000 EU legislative acts in force. These are mainly directives, regulations, decisions and external agreements, but they include a range of other instruments. As Commons Briefing Paper Legislating for Brexit: the Great Repeal Bill, CBP7793, 21 November 2016, explains, a major issue for Brexit is what to do about EU legislation that has been incorporated into UK law. Section 2(2) of the European Communities Act 1972 (ECA) provides a power for subordinate legislation to be made where the EU Treaties require Member States to make provisions in their domestic law, such as for the implementation of EU directives. It also provides that other powers to adopt subordinate legislation in other Acts are interpreted as enabling them to be used to implement EU law. Most EU directives and a small number of EU regulations and decisions are implemented in the UK by SI under the authority of the ECA - the majority - or another enabling Act. Some EU directives are implemented by primary legislation (Act of Parliament). These will be examined in a separate briefing paper. Repealing the ECA will have the effect of rendering the law as if the repealed Act had never existed, which would mean that secondary legislation made under the ECA (but not under other enabling Acts) would no longer be legally valid on Brexit day. Although the aim of the Government’s proposed Great Repeal Bill is to legislate to leave the EU, for practical reasons and to avoid legal gaps, the Government has said the Bill will “convert” EU law into UK law where it is practical. The Government and Parliament will then decide whether to repeal, amend or keep them. It is not yet clear what role Parliament will have in such a process. The ECA applies to the whole of the UK and to different degrees in Gibraltar and the Crown Dependencies. Under the Devolution Statutes the devolved authorities may observe, transpose and implement EU law, and are obliged not to legislate or act in a way that is contrary to EU law. Brexit means they too will need to address the matter of EU-derived laws.