After what seemed like an eternity, but in reality has only been a few months, the Prime Minister announced on 2 October 2016 that Article 50 of the Treaty of the European Union would be triggered in March 2017, starting a two year countdown to the UK leaving the EU. Alongside what has become the world’s most famous procedural announcement, the Prime Minister laid out her Government’s first stab at legislative direction, but stating that there would be a ‘Great Repeal Bill’ (“GRB”) , to be formally laid out next year.
The GBR would repeal the European Communities Act 1972, the UK law that implemented the EU Treaties into UK law and the precedence of European Court of Justice decisions over those of the domestic court system. This Bill/Act would have effect upon the formal exit of the UK, or immediately after. The generally accepted position is that the GRP will simply state that all past EU legislation incorporated into UK law by virtue of the 1972 Act is confirmed as fully enforceable and valid UK legislation going forward.
In the years following Brexit the UK Government would then consider what areas it wished to amend or repeal. This approach will ensure legal continuity and avoid any legal black-spots. It remains to be seen in a closer review of the draft bill when it is published whether this general catch all approach would be subject to any specific exceptions.
However, the controversial aspect of the proposed GRP is the anticipated power it will give to Ministers to repeal legislation after Brexit without being subject to proper Parliamentary scrutiny. These powers are often referred to as “Henry VIII’s powers” as this approach was famously used in this country in the 16th Century when the monarch dissolved the Monasteries and large swathes of English law.
The announcement by the Prime Minister has already been scrutinised by lawyers and constitutional experts to ascertain what it really means. The prevailing view is that this was mainly a political announcement to set the stage for a ‘hard Brexit’ (taking the UK outside the EU single market) and the supremacy of Parliament and the UK court system in the decades to come. It has bought certainty in one way in indicating that the simplest mechanics of leaving the EU will be managed through a single piece of legislation. It has also bought certainty in that it ends the question of what Parliamentary scrutiny will exist over the referendum vote and Brexit generally. Political commentators in the UK are already guessing the GRB will be able to be passed with a majority through Parliament, ending the so called constitutional crisis that some guessed (or hoped) would follow the referendum.
What it of course misses is the detail, in that the UK, through negotiations and whatever demands reality imposes, will end up with a mix of new legislative areas where no EU law applies, and others where EU law will continue apply entirely thanks to the GRB. That is why the GRB is already mockingly becoming known in legal circles as the Great Preservation Bill. Many appreciate the scale of the legal task facing Government and the smart money is currently on most EU laws remaining the same thanks to transitional provisions in the GRB. This also takes into account the reality that not all EU laws are hated or broken and that many benefit UK consumers and businesses alike.
For example, the Prime Minister has already announced that EU employment protections would remain for UK workers (an announcement no doubt met with groans by business lobbyists who would have gladly seen the back of the Working Time Directive and provision on compensation when terminating agents).
What is clear and undisputed is that the legislative burden on the UK is huge. The new legal landscape is unlikely to be formed properly until after March 2019 when the UK has formally withdrawn from the EU. This is because the terms of exit will not likely be decided till something close to the last minute when the pressure of the deadline bears down on the EU Member States, the UK and the EU Commission; moving targets are hard to hit.
The GRB will be introduced in the Queen’s Speech (the announcement of the following year’s legislative programme) in May 2017. A draft bill will be seen some time after that. No doubt it will be one of the most widely scrutinised pieces of UK legislation ever.