The long-awaited ‘Great Repeal Bill’, to be known officially as the European Union (Withdrawal) Bill, was published last Thursday. The bill is a complex mix of constitutional change and legal continuity. Jack Simson Caird highlights some of its main elements.
Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017.
The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the ‘conduit pipe’ through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:
- the creation of a new distinct body of law known as ‘retained EU law’;
- broadly-framed delegated powers for government to alter this body of law;
- new instructions to the courts on how to interpret retained EU law; and
- amendments to the legislation that underpin devolution.
The government’s position is that the primary purpose of the bill is to provide a ‘functioning statute book’, ensuring legal continuity after exit day. The bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.
Balancing continuity and change
Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) ‘wholesale’ through this bill, the government has claimed that the general rule is that the ‘same rules and laws’ will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:
- the delegated powers in the bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
- a proportion of EU law will no longer apply once the UK is outside the EU;
- the government is bringing forward a number of bills to make substantive policy changes in areas currently covered by EU law; and
- preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU member state and subject to the full force of EU law.