The Great Repeal Bill White Paper: what we have learned

30 Mar 2017

Today the Government published a White Paper for the Great Repeal Bill, but confirmed it does not intend to publish the Bill in draft before it is placed before Parliament.

When it appears, the Bill is likely to be only a few pages long, but the changes made under it will dominate the current Parliament, transform the UK’s legal landscape and almost certainly result in numerous legal battles in our courts for years to come.

The White Paper says that the legislation will do three main things.

First, it will repeal the European Communities Act 1972 (“ECA”).

Second, most EU law as it stands at the moment of exit will be converted into UK law before we leave the EU. This is necessary so that the UK does not suffer from legal ‘black holes’ when we leave (e.g. an absence of laws regulating pharmaceuticals etc.) and in order to maintain legal certainty.

The Government is probably hoping that this approach will also help us to get a better trade deal from the EU, on the basis that Member States will be reassured that UK products and services will continue to comply with rules and regulations derived from EU law.

Third, the Great Repeal Bill will create powers to make secondary legislation to adjust EU laws which would no longer operate appropriately once we have left the EU (e.g. because they grant functions to EU institutions which we will need to replace with an equivalent UK body).

These reforms will raise many issues, some of profound constitutional significance, others of enormous complexity. Some will be explored in future posts on this Blog, while some already have been (such as in this post by Christopher Muttukumaru CB, and this one by George Peretz QC). These are some of the key points arising from the White Paper.

Which EU laws will be converted into UK law?

At the moment, EU law operates in the UK in a variety of ways. In certain areas, we have implemented EU law by passing pieces of primary legislation (such as the Equality Act 2010). These will obviously not need incorporating (but they may need amending).

In other cases, EU law is implemented through secondary legislation, including statutory instruments made under the ECA – which will need to be retained as they would otherwise fall away on exit.

Other types of EU law have direct effect in the UK, including more than 12,000 regulations and EU Treaty provisions. The White Paper clarifies that regulations will not be ‘copied out’ for domestic purposes, rather the Great Repeal Bill will provide that they will continue to apply as a matter of UK law “as they applied in the UK the moment before we left the EU” (subject to the discussion below concerning post-Brexit EU law judgments).

It was unclear how Treaty provisions would be treated before the White Paper. It states, however, that Treaty rights that can be relied on in court by individuals (e.g. such as those setting out worker and consumer rights) will be incorporated into UK law. That may prove quite significant over the longer term, not least because it will mean that UK litigants will still be able to rely on the more ‘teleological’ legal reasoning that is characteristic of EU law, alongside the ‘black letter’ approach traditionally favoured by the common law.

In his response to David Davis’ statement, Keir Starmer on behalf of Labour focused on the fact that the White Paper says that the EU Charter of Fundamental Freedoms will not be converted into UK law. One suspects that issue may have been selected in part for its usefulness for political campaigning, and not only because of its legal impact. As the Government notes, the Charter was designed to codify pre-existing EU law, much of which will be converted into UK law in any event. UK citizens will also be able to rely on the ECHR and the Human Rights Act, as well as the fundamental common law rights that our courts have been busy developing over the past few years.

It will be interesting to see if anyone can point to a Charter right that would not otherwise exist under UK law, although incorporating the Charter would obviously give those rights added protection against encroachment by future legislation.

Will all the legislative changes receive proper Parliamentary scrutiny?

That is the key question. A huge number of laws are going to need amending in a short period of time, in particular given that many of the required changes will only become clear once the Article 50 negotiations have progressed. The White Paper estimates that between 8,00 and 1,000 statutory instruments may be required for Brexit-related changes.

The Government correctly states that “there is a balance that will have to be struck between the importance of scrutiny and the speed of this process”. But the level of scrutiny that has been proposed is almost certainly not adequate and the Government will need to adjust its approach.

In a handful of areas, such as customs, immigration, agriculture and a few others, reforms will be properly scrutinised because they will be brought forward in primary legislation – because the UK will effectively need to set up entirely new domestic regulatory regimes.

It is in the areas where changes are to be made through secondary legislation that concerns arise. Mr Davis sought to reassure by saying that changes would generally be made through the standard procedures for statutory instruments, namely the negative procedure (which does not require debate) and the positive procedure (which requires debate and approval by both Houses).

But this is not reassuring because these procedures stack the deck in favour of the Executive, not least because it is generally not possible for Parliament to amend secondary legislation. While Parliament can sometimes intervene to require a ‘super affirmative’ procedure, this will not help much as it is almost as lengthy and detailed as that for primary legislation. As a result, it will not generally be viable given the time constraints.

It is for these reasons that it has been suggested that new, more flexible procedures should be introduced to give Parliament greater scope to review and amend Brexit-related statutory instruments where appropriate, without bringing the whole process to a standstill. Increased but timely scrutiny would also be facilitated if the Government agreed to publish its proposed legislation in draft, accompanied by White Papers summarising what changes were being made and why they were necessary.

These issues are likely to be picked-up in many of the responses to the White Paper as well as during the Bill’s passage through Parliament. They will be informed by the findings of the inquiry that has been launched by the Commons Procedure Committee into ‘Delegated powers in the Great Repeal Bill’.

Will there be legal constraints on what the Government can do?

Yes. The Government has said that the powers conferred on it by the Great Repeal Bill will be time-limited, although the White Paper does not specify a particular timeframe. The powers will probably need to extend beyond the date of Brexit, as even in the most hopeful scenario there will undoubtedly be legislative odds and ends that need sorting out. A cut-off of two or three years after Brexit has been suggested by others.

In addition, and importantly, the White Paper states that the Government “will ensure that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU”. The powers conferred on the Government to amend the law through secondary legislation will therefore be expressly limited to Brexit-related issues.

Lawyers with clients itching to have their EU regulations amended for non-Brexit related reasons (e.g. because they regard them as unduly onerous), are therefore going to have to wait until after Brexit has taken place (except in those areas where broader reforms are brought forward in primary legislation where there may be more scope for lobbying). The Government will have plenty to do without also having to sift through a Pandora’s box of EU-related gripes.

In addition to the express wording of the Bill, the Government will also be subject to other, less obvious constraints. The effect of all of this is that many rules that were previously set out in effectively unchallengeable primary legislation (such as EU regulations and Acts of Parliaments) will in future be the product of statutory instruments – which there is much more scope to challenge.

The traditional approach of the UK courts is as has been stated by Lord Donaldson: “The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach”.

Various other principles of statutory interpretation will also be relevant, including the presumptions that secondary legislation should not infringe fundamental rights or change the law retroactively. Our courts are likely to be kept busy for many years with challenges to secondary legislation enacted under the Great Repeal Act.

What status will be given to EU judgments?

For all those areas of UK law which are derived from EU law, the White Paper proposes that UK courts will be required to treat EU case law that pre-dates Brexit as being equivalent to Supreme Court judgments (i.e. binding on all courts below the Supreme Court itself).

The position of post-Brexit EU judgments is less clear. The White Paper says that “the Bill will not require the domestic courts to consider the CJEU’s jurisprudence”. On the other hand, it also states that “for as long as EU-derived law remains on the UK statute book, it is essential that there is common understanding of what that law means”.

But what happens when the CJEU develops EU law after Brexit? If most UK courts are bound to follow the old, pre-Brexit EU law position, UK and EU law will diverge and there will no longer be a ‘common understanding’ – at least unless and until a UK case makes it to the Supreme Court. Our highest court is going to be very busy if it has to take responsibility for deciding cases every time there has been a development in EU law.

These difficulties can probably be minimised. If the Great Repeal Act is silent on post-Brexit EU judgments, UK courts will be free to treat them as being of persuasive authority (and probably will). They will then be free to follow post-Brexit EU law judgments, at least where there is no good reason for taking a different approach, so long as they can distinguish any earlier pre-Brexit EU authorities. It is only where those earlier judgments cannot be distinguished on the facts that the Supreme Court will be needed to develop EU-derived domestic law.

Nonetheless, this is not something that the White Paper grapples with at all and further thought will be required.

What happens next?

People will respond to the White Paper and the Government may adjust its position in various respects before it presents the Great Repeal Bill to Parliament, which will then spend several months debating it. Parliament will face a trade-off, though, as the longer it spends debating the Bill the less time it will have available to scrutinise the secondary legislation made under it.

In the meantime, Government departments will continue with trying to identify all the changes that need to be made to their areas of EU legislation in order to make them work properly at the time of Brexit. And now that Article 50 has been triggered, both civil servants and parliamentarians will be trying to hit something of a moving target as the negotiations develop.

There is, to put it mildly, a lot to be done.