The House of Commons’ Library (the “Library“) has published a briefing (the “Briefing“) which considers issues that are likely to be raised in the proposed “Great Repeal Bill”.

The Briefing discusses following likely features of the Great Repeal Bill:

Repealing the European Communities Act 1972 (the “ECA“) (Section 2)

The Briefing explains the fact that since the enactment of the ECA, EU law has been a major part of the UK’s constitutional and legal framework. The Briefing discusses the key provisions of the ECA (sections 2(1), 2(2), 2(4) and 3(1)) as well as case law which engages these provisions.

Challenges for converting EU law to domestic law (Section 3)

The Library explains that some EU law cannot be replicated in UK domestic law following Brexit Day, for example the right to seek a reference from the Court of Justice of the EU (the “CJEU“). They also raise the important question of how transposition will be carried out, both in terms of the form of words used and whether it will be done using statutory powers delegated to ministers or on the face of the Bill.

Other legislation that implements EU law (Section 4)

The Briefing explains that repealing the ECA will not remove EU law’s influence on the statute book, as Parliament has enacted a significant amount of legislation to give effect to the UK’s obligations under the Treaties. Furthermore, the Library discusses the fact that while the majority of this legislation will function effectively post-Brexit, some provisions may need to be amended, while others might need to be repealed altogether, such as the European Union Act 2011.

The proposed use of delegated powers (Section 5)

The Government has indicated that the Great Repeal Bill will contain delegated powers enabling ministers to make changes to the statute book to give effect to the outcome of the withdrawal negotiations. The Briefing discusses the fact that such delegated powers enabling ministers to make changes to primary legislation (sometimes known as Henry VIII powers) will likely be subject to scrutiny. Such scrutiny will cover the following:

  • Whether the delegated powers are limited in scope by any purpose or subject based restrictions; and
  • The parliamentary procedure specified by the Bill to enable the secondary legislation to be made. For example whether a negative, affirmative or super-affirmative procedure is used.

Devolution (Section 6)

Legislating for Brexit will have significant implications for Scotland, Wales and Northern Ireland. This is due to the fact that implementation of the Great Repeal Bill will potentially mean the transposition of all directly applicable EU law. The Library discusses the fact that this could trigger a range of provisions that fall within the competence of devolved institutions; in such instances, these such matters will require the consent of the devolved legislatures.

The Courts (Section 7)

The Library explains that removing the ECA from the statute book will mean that the UK courts will no longer, after Brexit, give primacy to EU law. The Briefing discusses the fact that the judgments of the CJEU, and EU law itself, could still remain relevant to the national courts when they decide cases on domestic legislation which originates from EU law.

The full Library briefing can be found here.

For more information on the Great Repeal Bill, see our previous Blog post here.