The Great Repeal Bill: The law of unintended consequences?

Article 50: what next for international contracts?

The Government published its European Union (Withdrawal) Bill, otherwise known as the ‘Great Repeal Bill’, (the “Bill”) on Thursday 13 July 2017.  

 

As set out in the government’s Explanatory Notes, the Bill performs four main functions:  

  • it repeals the European Communities Act 1972;
  • it converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU;
  • it creates powers to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement; and
  • it maintains the current scope of devolved decision making powers in areas currently governed by EU law.

There is little apparent progress currently in the Brexit negotiations between the UK and the EU and therefore no progress on finalising future arrangements: In light of this, the approach of the Bill which seeks to ensure continuity while allowing greater flexibility appears to be sensible. Arguably there is little alternative to this approach.

In terms of an objective, this is fairly simple and the Bill is correspondingly quite short. However there are very significant complexities underlying the ostensible simplicity of the Bill, reflected by the length of the Explanatory Notes. We expect many of these complexities to be debated vigorously in Parliament, both because this is legally complex and because we are in a politically complex situation. 

Nonetheless some initial thoughts around the challenges arising from the application of the Bill are as follows:

  • The importation wholesale of ‘foreign law’.  One of the great ironies of this is that EU law will be imported ‘warts and all’ into UK law.  Of course it is arguable that this merely replicates the status quo, but it seems at least partially at odds with the objectives of ‘Leave’ that the relatively remote EU law as enforced and opined upon by the European Courts and the European institutions will suddenly be domestically considered and enforced.  Ministers who may previously have sought to blame EU law for its deficiencies will become responsible for it. One might therefore anticipate considerable political fall-out if there are resulting deficiencies in UK law post-Brexit.
  • What EU law will apply in the UK? The Bill retains EU-based domestic legislation and incorporates direct EU legislation, but within that, what EU law applies may be the subject of debate. For example, it may not be easy to determine what, how or the extent to which certain EU decisions, rules or regulations apply under UK law.  Some of that imported EU law will contain aspects based on a single market imperative, on cross border trade or on non UK legal traditions or considerations.  How such provisions should be applied in the UK will be uncertain.
  • A lack of parliamentary scrutiny.  There are two aspects to this.  Firstly the passing of the Bill will result in the wholesale importation into UK law of all EU law, and clearly there will be no UK parliamentary scrutiny of EU law generally at that time (however arguably of course this reflects the status quo).  Secondly there is the power for ministers to make secondary legislation and temporary powers to make corrections (including in relation to international obligations) without the usual parliamentary scrutiny.  Is this open to abuse by ministers? Even if this is unlikely this will result in law that has been subject to less review and oversight than usual. 
  • What is the effect of imported EU law? The mantra frequently used in the Bill is that imported EU law will have the same effect after exit as it did in EU law immediately before the day of exit, which begs the question, what is its effect in EU law prior to exit? The Bill suggests that imported EU law may remain supreme over domestic law made prior to exit, or modifications to domestic law made after exit. This is logical, as these laws have been drafted with the supremacy of EU law in mind, and not giving effect to that supremacy may give rise to significant issues with consistent interpretation of the body of law as a whole. However, one might anticipate challenges in determining whether EU-derived law, or its modification, remains supreme over amended domestic law.
  • Challenges in interpretation of imported law by the Courts: EU law, as law created in a process involving 28 member states and many different languages, has a tendency to be more vague than domestic law in the UK. Challenges in relation to interpretation are currently resolved amongst other things by an ability to refer questions to the Court of Justice of the European Union.  Under the Bill, it is envisaged that UK courts and tribunals will be tasked with interpreting imported law without the ability to refer matters. That may be in some senses preferable for the swift administration of justice, but typically such questions are very difficult to resolve and the task will only become harder the less familiar we become with EU law following the UK’s exit from the EU.  How familiar are judges currently with EU law, and will memories fade?
  • Charter of Fundamental Rights: Some concerns have been raised in relation to the non-transference of the Charter of Fundamental Rights into imported EU law. The government’s position as set out in the Explanatory Notes is that the Charter merely replicates rights that already exist in the UK, but there may scope for legal and political arguments in relation to this aspect of the Bill.

    The negotiations between the UK and the EU are currently in progress and it remains to be seen how these will impact the transfer of EU law into UK domestic legislation.  But it seems unavoidable that unless there is a very lengthy transition on exit day there will be considerably uncertainty, however active the government is in seeking to adapt EU law to domestic UK requirements.  In such circumstances businesses may need to plan for increased disruption and risks of legal turmoil including litigation.  Taking timely action to mitigate risks arising will be important.

Contact our experts for further advice

Gustaf Duhs, Maliha Carey

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