Repeal

The UK Government has published the text of the European Union (Withdrawal) Bill, known more commonly as the “Great Repeal Bill”, having produced a White Paper on the subject earlier in the year.   The text of the Bill can be accessed here.

 Described by the UK Department for Exiting the European Union  as “the next step in returning power from Brussels to the UK”, the Bill paves the way for the repeal of the European Communities Act 1972, which legislated for the UK’s accession to what later became the EU. 

 Key elements of the Bill

  • The Bill coins a new term – “Exit Day” – the date on which the UK will cease to be a member of the EU.  According to the agreed timetable set out under Article 50.
  • Exit Day will likely take place no later than 29th March 2019, unless the timetable for the UK’s exit negotiations is extended by unanimous consent of the remaining EU members.
  • It confirms that The European Communities Act 1972 will be repealed on Exit Day.
  • After Exit Day, future EU directives and regulations will no longer automatically be incorporated into UK law.
  • EU law will no longer have supremacy over UK domestic law.  At present, UK courts must prioritise EU law when making decisions.
  • All existing UK laws which originated from the EU will remain law in the UK after Exit Day, being ‘translated’ into the UK statute, but may be amended or repealed by subsequent Acts of the UK Parliament.   According to the White Paper there is “no single figure for how much EU law already forms part of UK law”, but it is estimated that there have been around 7,900 UK statutory instruments which have implemented EU legislation, and that out of 1,302 UK laws enacted between 1980 and 2009 (excluding those later repealed), 186 Acts (or 14.3%) incorporated a degree of EU influence.
  • Legislation passed by the devolved governments of Scotland, Wales and Northern Ireland after Exit Day will no longer need to be compatible with EU law.
  • UK Government ministers are given power to make secondary legislation to make changes required, after enactment, to smooth the translation of EU law into UK domestic law.
  • The Government has a two-year grace period after Exit Day, during which it may amend any ‘deficiencies’ arising from the changes to the law. This means the laws in question may still be under review up until 2021.

Next steps

The UK Parliament is not set to debate the Bill until the autumn, and it must receive a majority vote in both the Houses of Commons and Lords in order to become law.

The UK Government has indicated that, in addition to guiding the Bill’s passage through the UK Parliament, it will seek legislative consent for the Bill from the devolved legislatures of Scotland, Wales and Northern Ireland.  We have discussed previously the mechanics of such consent here and here.

Given that the Conservative Party finds itself in minority government at UK level (albeit with a ‘confidence and supply’ arrangement in place with the Democratic Unionist Party), and that the devolved administrations have taken quite different views on Brexit since the result of the EU referendum last year, the path of the Bill towards enactment may not be smooth.