The Great Repeal Bill

Last week the Great Repeal Bill, now officially titled European Union (Withdrawal) Bill, passed its second reading in the House of Commons. Having completed ‘Introduction to Law’ at the Open University last year I feel qualified to comment on this legislation and this is an ideal opportunity for some course revision! The legislation has a two-fold purpose – firstly to repeal the European Communities Act 1972 (ECA) that took us into the EU, and secondly to create the process of moving EU laws onto the UK law book so that we have a complete and consistent set of legislation on the day we leave.

Note that legislation is introduced as a ‘Bill’, and becomes an ‘Act’ when it passes all the relevant stages in each House and receives Royal Assent. Also, if you want to pass any legal qualification you have to know that certain words such as ‘Bill’, ‘House’, ‘Parliament’ etc. must start with a capital letter!

You can monitor progress of the Bill on the government web site. Fortunately you can also read a far more authoritative commentary than mine here.

What is the purpose of the legislation?

As described in the White Paper the task of moving (relevant) EU legislation into UK domestic law is enormously complex due to the large amount of legislation involved and the need to match the changed circumstances after Brexit. For example, references to EU institutions, such as those that regulate EU standards will need to be adapted and possibly new UK institutions established as the old institutions cease to have jurisdiction in the UK.

The White Paper describes how there are a number of ways in which EU laws (treaties, directives and regulations) currently apply. Some apply directly (‘directly applicable’) while others are implemented in UK laws and secondary instruments.  Finally there are rulings by the Court of Justice of the EU (CJEU). EU directives were often implemented using delegated legislation (usually under the authority of section 2(2) of the ECA) and these will  cease to apply once the controlling act (the ECA) is repealed.

The Bill ensures directly applicable EU law, as it stands on exit day, will continue to apply and take precedence over UK domestic law enacted before exit day. An example given is the protection of workers’ rights including Article 157 Treaty on the Functioning of the European Union (TFEU) (equal pay) and some CJEU case law, as well as derived UK domestic law – the Equality Act 2006 and the Equality Act 2010. However, new legislation will take precedence. Similarly CJEU judgements made prior to exit day will have the same force as UK Supreme Court judgements but, as with normal Supreme Court judgements, can be over-ridden by subsequent UK Supreme Court judgements and are subject to the sovereignty of the UK Parliament.

In practical terms one can immediately see many complexities in the path plotted by the White Paper – especially if you’ve worked on complex projects in the past – for example revisiting large bodies of software. The fact that directly applicable EU legislation is to apply directly in a non-EU environment means new UK legislation will be required to amend existing EU legislation – presumably consisting of a mixture of generic rules (eg substitution of UK bodies for EU bodies) and specific changes. It remains to be seen how easily such a hotchpotch of legislation can be interpreted and how, for examples, deficiencies in the amending process will be handled if companies find loopholes to exploit.

The White Paper goes on to consider the need for delegated powers – i.e. powers given to ministers to achieve the aims of the Bill. These delegated powers will allow creation delegated legislation (also known as secondary or subordinate legislation), in the form of Statutory Instruments (governed by the Statutory Instruments Act 1946), which have the same authority as laws created by Parliament. Statutory Instruments and other types of delegated legislation are very common – as for example as set up in s2(2) ECA where they are often used to implement EU directives. The White Paper gives three ‘case studies’ on how these could be needed. For example Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 requires permission from the EU Commission for some projects, and this reference will need changing either to require permission from some UK body or to remove the requirement.

The White Paper also states the need for delegated powers to ‘correct the statute book’, thus ministers will be able to change UK law without further primary legislation. It is also envisaged that aspects of the Brexit divorce settlement will be implemented using delegated powers.

Aside from the division in the country over Brexit there is controversy surrounding this Bill because the ability to create delegated legislation is thought to be too broad and will result in implementation of laws without adequate oversight. Furthermore the actual draft Bill appears to envisage making substantive changes to the legislation as it is brought over, something that the white paper does not make clear. A further issue is that devolved legislations in Scotland, Wales and Northern Ireland will not get a say in how legislation relating to them are handled in the changeover.

What’s actually in the draft Bill?

Acts of Parliament are divided into sections which may contain subsections (sometimes with paragraphs and sub-paragraphs), possibly followed by a number of schedules (appendices) which are referenced by the main body. The draft Bill can be accessed here.

The first section of the Bill is a single sentence repealing the ECA.

Sections 2 to 6 of the Bill goes on to describe how various categories of legislation will be handled after ‘exit day’.

Section 2 talks about ‘saving’ UK legislation that implements EU legislation – i.e. making sure it still applies meaningfully after exit day. It defines ‘EU derived domestic legislation’ which includes delegated legislation (statutory instruments) made under the ECA but excludes the ECA itself.

Section 3 talks about direct EU legislation (legislation that wasn’t enacted through UK domestic law). This excludes legislation that is already implemented in UK law and legislation only relevant to other countries. Although these are sensible rules, it would be interesting to know how the judgement is made that something is already implemented in UK law.

Section 4 deals with some rights included in the ECA itself (noting the exclusion of the ECA in section 2).

Sections 7 to 9 describe the powers (i.e. the ability to create delegated legislation). Section 7 is a key section defining how delegated legislation to handle ‘deficiencies arising from withdrawal’. Subsection 4 ominously states ‘Regulations under this section may make any provision that could be made by an act of Parliament’ although this is somewhat mitigated by subsection 6 – similar to part of the ECA (sub-paragraph 1(1) of schedule 2) – including, for example, not creating new criminal offences.

Sections 8 and 9 have similar provisions to section 7 to handle international obligations and the withdrawal agreement.

Sections 10 and 11 are about devolved legislation. Section 10 brings in schedule 2 which describes how the UK government can make regulations applying to devolved authorities (I guess rather than the devolved legislations doing this themselves). Section 11 is about retaining restrictions on devolved legislations that come from EU law.

Sections 12 to 17 are described as ‘Financial provision and other matters’ but seem very relevant – for example section 16 (‘Regulations’) brings in the important schedule 7. Schedule 7 is about how Parliament will have the ability to scrutinize delegated legislation.

Of the schedules, Schedule 7 is important because it covers how much control (‘scrutiny’) delegated legislation will be subject to. Normally statutory instruments are subject to one of two types of scrutiny procedure – affirmative and negative as described in a very informative briefing paper here. In the affirmative case both houses debate the legislation and can reject it. In the negative procedure case there is no prior scrutiny – in this case the instrument can be struck down (disapproved) if a motion to annul (a ‘prayer’) is passed within 40 days  of the instrument being submitted. Disapproval is extremely rare and relies on gaining time for a motion to be heard – as discussed in the briefing paper.

Paragraph 3 of schedule 7 (‘Scrutiny procedure in certain urgent cases’) is particularly interesting because it allows for statutory instruments to be brought into action in advance of being put before Parliament – allowing a month to be brought before Parliament. While failing to bring these instruments before Parliament within a month causes them to lapse (sub-paragraphs 4 and 5), subsection 6 says that anything enacted under this ‘urgent’ delegated legislation before the month elapses remains in force and this does not prevent making more instruments. This seems to open the door for creating just about any law to do just about anything – only constrained by the 1946 controlling statutory instruments and any limitations imposed by the Bill itself. Of course this seems like a technicality if the odd thing gets through – but suppose a minister decided to create hundreds (or thousands) of rolling monthly instruments to effectively implement something like an arbitrary deportation regime.

Schedule 8 contains some changes to existing UK legislation. Part I contains general changes to be applied across the board while Part 2 contains some specific changes to some Acts. For example paragraph 6:

“In section 56 of the Finance Act 1973 (charges for services etc. by Government departments), in subsection (1), omit “any EU obligation or”.”

To make any real sense of this legislation requires reading the very complex schedules – here’s a challenging sub paragraph (1) of paragraph 20 from schedule 7:

“An instrument to which paragraph 1(1) or (3), 1(4) or (5), 1(6) or (7), 1(8) or (9), 2(3) or (4), 2(5) or (6), 2(10) or (11), 2(12) or (13), 3(2), 5(1) or (3), 6(1) or (3), 7(1) or (3), 10(2) or (4) or 11(2) applies which revokes, amends or reenacts any such instrument may (in spite of section 14 of the Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original regulations was subject or, in the case of regulations under section 17(5), no procedure.”

Where does this leave us?

As recognized by the government, this process is extremely complex and challenging and it follows that there is no way all the legislation can be converted using Parliamentary debates. However, it does not necessarily follow that either the approach or procedures proposed will produce a good result, even if all Ministers act in good faith – something which many currently in place have shown very little of in recent history.

It has been argued that there are precedents for the kinds of powers in this Bill. For example, the ECA itself imported a large amount of EU law paved the way for EU legislation to take precedence over UK legislation and to be implemented via delegated legislation. However, in that case scrutiny occurs at the EU level both through the Parliament and the member governments and the law that was being imported or enabled by delegated legislation was not being modified or repurposed for a new context.

Time will eventually tell what comes of all this, but there is the potential for litigation to drag on for years as the result of a botched changeover. Issues could retrospectively be raised either due to particular errors or ambiguities of drafting – or even contesting the whole regime of how law is meant to be interpreted.

At the very least the government has gone far out on a limb with promises and assurances over Brexit, and the temptation to use the sweeping powers they are about to award themselves to paper over the cracks and hide their deficiencies will be very strong.

There are many things to look at in this draft legislation so I encourage you to go and look at it!