It was always going to be the case that when the UK voted to leave the EU, the lengthy process of disentangling the UK from its EU obligations would have to take place at both the EU and the UK level. Article 50 provides the bare bones of a process to leave at the EU level (see Article 50 fact sheet). At the UK level, it was clear that the European Communities Act (ECA) 1972, which took the UK into the EU, would have to be repealed. But that would be the easy bit. The trickier question concerned the fate of the thousands of EU rules which had been incorporated into UK law. Would they all be jettisoned at the time of Brexit – causing legal chaos and uncertainty – or retained?
At the Conservative Party conference of October 2016, the prime minister, provided an answer: As we repeal the European Communities Act, we will convert the ‘acquis’ … into British law. When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses. But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union. The same rules and laws will apply to them after Brexit as they did before. Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate. Thus, she proposed what was known at the time as the Great Repeal Bill (GRB), later the Repeal Bill and now the EU (Withdrawal) Bill which would: repeal the ECA, convert all EU law into national law, and correct EU law once it is part of UK law.
What is the current situation?
EU law can be divided into three groups: primary, secondary and tertiary.
• Primary law includes the two main EU Treaties (the TFEU and the TEU) and the Charter of Fundamental Rights;
• Secondary law fleshes out the detail of EU law in the main policy areas e.g. environmental law, social policy, financial services. It includes regulations, directives, and decisions;
• Tertiary law provides further detail of secondary law and is largely the responsibility of the European Commission.
Currently, EU law has precedence over UK law (‘supremacy’). Much EU law is also directly effective. This means that individuals can rely directly on EU rights before the domestic courts. Section 2(1) of the ECA introduced the principles of supremacy and direct effect into UK law.
What has the British government indicated it wants?
The aim of the EU (Withdrawal) Bill is to ensure a functioning statute book on Brexit day, while also ensuring consistency between the pre-Brexit and post-Brexit position. In fact, the bill does three main things:
Repeal: First and foremost, the bill repeals the ECA 1972. At a minimum, this has the effect of removing the supremacy of EU law over UK law and removing the principle of direct effect.
Convert: Second, the bill aims to take a snapshot of all EU law on Brexit day and convert that whole body of EU law (in so far as it is relevant to the UK) into UK law. That’s the headline. In fact, the reality is more complicated:
• Many directives are already part of UK law. Those incorporated via powers in S.2(2) ECA will be preserved by the EU(W)B. Those incorporated into UK law by primary legislation, for example, the Equality Act, will also be preserved. Certain ‘directly effective’ treaty provisions will also be converted into UK law, as will all relevant EU regulations and decisions which are legislative in style.
• The Charter of Fundamental Rights will not be converted but the underlying ‘general principles’ on which the Charter rights are based (e.g. the principle of equality) will be converted into EU law.
• Together, the preserved and the converted legislation are described as ‘EU-retained law’.
As far as the case law of the European Court of Justice is concerned, the bill makes a distinction between case law handed down before and after Brexit day:
• Pre-Brexit day case law will continue to be binding on the UK courts. It will have the same binding or precedent status as decisions of the Supreme Court (and the High Court of Justiciary (HCJ) in Scotland).
• Domestic courts will ‘be able to consider’ post-Brexit decision by the ECJ.
Correct: The third element of the bill gives the UK government the power to amend, repeal or replace EU retained law with British rules. After Brexit day it will be free to do this, since it will no longer be constrained by the principle of the supremacy of EU law. However, in order to ‘correct’ the statute book, the bill gives the government (in reality the civil service) very wide ‘Henry VIII’ powers. These allow the executive to amend or repeal not only UK secondary legislation (such as statutory instruments), but also UK primary legislation (Acts of Parliament) with little or no scrutiny from Parliament itself.
Information published by UK and devolved governments:
- Fact sheets on the Bill published by DExEU (13 July 2017)
- Statement by First Ministers of Scotland and Wales (13 July 2017)
- House of Lords Constitution Committee, “The ‘Great Repeal Bill’ and delegated powers” (7 March 2017)
- House of Commons library paper
To download a PDF of this factsheet click here.