The Great Repeal Bill: UK law post-Brexit

Big Ben
By Gordon Downie, Partner and Louisa Knox, Partner at Shepherd and Wedderburn

26 April 2017

On 30 March 2017 the UK Government published a White Paper, ‘Legislating for the United Kingdom’s withdrawal from the European Union’. The Government plans to implement its approach to making the UK legal system ready for Brexit via ‘The Great Repeal Bill’ (the Bill).

Repealing the ECA

The Bill will repeal the ECA on the day that the UK leaves the EU.  After that date, EU law will not apply in the UK.  Until that date, EU law will continue to operate fully in the UK.

If the Bill went no further than repealing the ECA, however, it would create significant difficulties in terms of legal certainty and continuity.  In particular, a number of ‘black holes’ would appear in respect of areas that are currently dealt with by EU law and regulation.

To deal with the problem of ‘black holes’ the Government proposes conversion of the existing body of EU law into UK law upon Brexit.  To make sure that this EU-derived law is ‘Brexit-fit’ it will also provide for delegated powers to allow the Government to amend it, so that it functions properly post-Brexit.  Both these steps are discussed further below.

Converting EU law to UK law

The Bill will:

  • Convert all directly applicable EU law into UK law.
  • Incorporate any rights contained in the EU Treaties into UK law, so that these can continue to be relied upon post-Brexit.
  • Preserve all of the statutory instruments made under the ECA, so that these won’t automatically fall away when the ECA is repealed.

Making UK law ‘Brexit-fit’

While the ‘conversion’ measures outlined above go some way to ameliorating the risk of ‘black holes’ appearing in UK law and regulation on Brexit, they do not address the problem of confusing or unworkable references to EU institutions, standards, arrangements, etc. in those EU-derived laws.

As such, the Bill proposes to give the UK Government (and devolved administrations such as the Scottish Government) broad delegated powers to amend EU-derived ‘converted’ law.  The Government admits that this will be a very significant task and estimates that between 800 to 1,000 statutory instruments may be required to make the necessary amendments.  It is hoped, however, that the majority of this work can be completed before Brexit.

Next steps

The White Paper states that the Bill will be introduced at the start of the next Parliamentary session.  Once introduced it will need to be debated and voted on by both Houses of Parliament.

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