Government publishes White Paper on the ‘Great Repeal Bill’

Posted on 31 Mar 2017 by Brick Court

Hugo Leith

The Government has released an initial outline of the legislation intended to provide the domestic legal system with a transition from membership of the EU, to Brexit.

The term itself, ‘Great Repeal Bill’ (an ambitious echo of the Great Reform Act of 1832) captures only a small part of the process.  The Bill would in fact effectively entail the wholesale re-enactment and continuation of law; the Secretary of State has though explained in evidence to Parliament the terminology on the basis that alternative names, such as the ‘Great Continuity Bill’ lack “the same appeal”.

EU legislation  The White Paper explains that to avoid a gap in the statute book, EU Regulations and Directives will be re-enacted with the force of UK law.  The EU Treaties generally will not be re-enacted, but rights within EU Treaties that can be relied on by an individual in Court will continue to be available.  While EU law is re-enacted, UK legislation will then take supremacy and may amend or repeal the body of re-enacted, formerly EU, law.   The Charter of Fundamental Rights will not be re-incorporated into UK law, although the Government considers that this will not alter the substantive rights already held by individuals under other legal instruments.

EU Case Law  Any decision of the Court of Justice as at the date on which Brexit occurs will continue to apply and to have the equivalent status within the UK hierarchy of a decision of the Supreme Court.  It would therefore be possible for the Supreme Court to review and depart from CJEU jurisprudence, but sparingly.

Prospective changes to the law  The Government recognises that substantial changes will be required to the body of re-enacted legislation or other legislation currently affected by EU law, in order to make it workable and avoid redundancy or ambiguity.  The solution proposed for this problem is through secondary legislation, adopted under existing procedures (including varying degrees of scrutiny by Parliament) for adopting statutory instruments (para 3.21).  The White Paper stresses the need for limits to be placed on the use of secondary legislation, while noting that the power to use the legislation must be sufficiently broad to be workable (paras 3.17 – 3.18).  It refers to constraints being created on the use of delegated legislation, albeit without specifying whether all such constraints would be legal and justiciable, or simply political or conventional.

The White Paper seeks to plot the dividing line between circumstances in which primary rather than secondary legislation is required, but the results are unclear (which could be very serious if legal constraints are established on the use of secondary legislation):

• The White Paper offers some sensible and reassuring illustrations of instances in which changes essentially of a drafting nature would be needed (Case Study 1, at para 3.4).
• The White Paper also appears to agree with the distinction proposed by the House of Lords Select Committee on the Constitution between, (i) the “more mechanical act of converting EU law into UK law”, and (ii) the discretionary process of amending EU law to implement new policies in areas that previously lay within the EU’s competence” (para 3.10).  This would suggest that primary legislation is needed for “policy” but that secondary legislation is legitimate for the “mechanical” conversion of old into new;
• At the same time, the White Paper also suggests that secondary legislation may well be needed to provide flexibility on policy, either on matters “which cannot be known or may be liable to change” or to facilitate changes to policy that are described (in very abstract terms) as “directly consequential” on Brexit.  This statement (para 3.9) would suggest that matters of policy, and changes in policy, could well be dealt with in secondary legislation, quite deliberately.
• The White Paper also gives as examples of cases suitable for secondary legislation instances in which a law requires an approval of an EU agency for an act to be carried out lawfully or for a UK agency to cooperate with an EU agency (Case Studies 2 and 3).  These examples would tend to suggest that the UK leaving EU regulatory agencies is a given, so that only the details remain to be sorted.  Since earlier this week, however, the Government now quietly acknowledges (and some commentators do so less quietly) that the UK will continue to remain within a suite of EU agencies as a matter of practicality, given the lack of expertise and time to set up UK agencies to do the same work.  It follows, then, that questions over continued involvement in EU agencies raise clear policy issues, raising the question as to the suitability (on the Government’s own test) of secondary legislation.

The contradictions in a “mechanical/policy” distinction and legal pitfalls that may arise can be illustrated with an example.  At present, any credit institution in a Member State holds a right of establishment in any other EU Member State (see eg Directive 2013/36/EU, Article 35).  Is the “mechanical” approach one that maintains the status quo, such that a French or German bank may continue (until the law is changed) to exercise this right?  Or is terminating this right the mechanical approach?  Alternatively, the answer may well depend on the outcome of negotiations and the political settlement as to the rights of UK banks to continue to trade in Europe.  This in turn cuts both ways: changes in the law following negotiations may be needed swiftly, but should Parliament not retain direct control over policy developments, even if they are precipitated by negotiations?   There are many other examples, more challenging.

The task ahead  The White Paper fairly acknowledges the scale of the task, noting that several thousand statutes and statutory instruments are in play.  It is not yet clear, however, that the Government’s approach is fully formed (and perhaps realistically it could not be).  It is also, however, not entirely clear from the White Paper that the Government itself has made much progress in assessing the task and developing a plan.  If the Government and the Civil Service have been undertaking systematic analysis of the legislative changes that are needed, the White Paper does not mention it.  It refers to the results of a search on the Eur-Lex website carried out on Tuesday (footnote 2) and to what is described as a “first trawl” of the statute books by Departments (footnote 8).  It also refers to two studies by the House of Commons, one from January and one from 2010.  The more detailed recent study simply lists the names of the Statutory Instruments adopted under the European Communities Act 1972, albeit while also noting that the list may not be exhaustive.

The challenge of the re-enactment and modification process is particularly acute given the time frame identified by the White Paper. The intention is for almost all changes to legislation to be in place by the date of Brexit itself (para 3.24-3.25). This in itself raises neat questions of drafting, since it entails the adoption of amendments to legislation at a point in time when the  legislation itself remains part of EU law, before the repeal and re-enactment has taken effect. A further, practical challenge would arise where changes to legislation hang on the outcome of negotiations. If those negotiations continue close to the date for Brexit, a rash of different versions of amending secondary legislation will need to be prepared to adapt to the different potential outcomes on areas that are likely to be most economically and politically sensitive. It is not difficult to see how the process risks either the deadline for changes being missed, or mistakes in legislation emerging, or both.