Only days after Article 50 was triggered by Theresa May, formally starting the process of the UK's withdrawal from the EU, the UK Government has published a White Paper explaining how it plans to legislate for Brexit.
This will primarily be by way of the Great Repeal Bill first announced by Theresa May in October 2016. There are two key aims behind the Great Repeal Bill. First, it will remove the European Communities Act 1972 (ECA), the statute that currently gives direct effect to all EU law in the UK. Secondly, it will convert the body of existing EU law (known as the "acquis") into UK domestic law. This "acquis" will then be EU-derived law, and special rules will apply to the interpretation of EU- derived law.
On the face of it, this approach is reassuring. The same rules will continue to apply until we are told otherwise. The aim, as Theresa May puts it, is for "maximum certainty" as the UK leaves the EU, with the Great Repeal Bill forming an important part of the Government's plan to deliver a "smooth and orderly exit". However, the Great Repeal Bill presents a number of challenges.
We consider below three key issues arising from the White Paper.
The scale of the challenge
The scale of the challenge is enormous. It is not as simple as cutting and pasting EU law into UK law. The Great Repeal Bill on its own is not enough. Other Bills will be needed, along with a raft of secondary legislation that will deal with "the rectification of problems occurring as a consequence of leaving the EU".
The White Paper highlights the following areas in particular: legislation that currently requires the involvement or oversight of an EU institution and will no longer work post-Brexit; references to EU obligations and EU law that will need to be amended; and reciprocal arrangements (such as information-sharing between the UK and the other EU Member States) that will become one-sided. There will be many consequential drafting issues. For more detail on the potential complexities, refer to our analysis piece: Great British Repeal Bill - A Show-stopper required.
Worryingly the White Paper states that there is no certainty as to the precise amount of EU-derived law (a "first trawl" has been done). According to the White Paper, there are 12,000 EU regulations currently in force, almost 8,000 statutory instruments have implemented EU legislation and 14% of Acts between 1980 and 2009 had a degree of EU influence. Identifying, reviewing and amending this legislation is no small task.
Inevitably much will also change as the exit negotiations get underway. Government will have to find a way of bridging the gap between the most recent draft of the Great Repeal Bill and the latest status of negotiations, the final outcome of which may not be known until close to the date of the UK's exit (and therefore the date on which the Great Repeal Act comes into force). Those working on the Great Repeal Bill, the 10-15 other related Bills (covering areas such as trade and immigration) and the estimated 1,000 statutory instruments are likely to be struggling to keep up with the negotiations and there could be practical sequencing issues as a result.
Separate challenges exist in relation to the existing devolution settlements. The Government anticipates "intensive discussions with the devolved administrations" in relation to how EU powers will be allocated to Belfast, Cardiff and Edinburgh. A tension exists in the current proposals: the Government expects a "significant increase in the decision making power of each devolved administration", while simultaneously indicating, that for the sake of legal and administrative certainty, it intends to replicate "the current frameworks provided by EU rules through UK legislation".
Many EU Directives forming the "current frameworks" concern devolved areas and are therefore implemented through separate legislation in the devolved legislatures. Repatriation of powers through UK legislation may require the Government - should there be no agreement as to legislative consent - to amend the Government of Wales Act 2006, Northern Ireland Act 1998 and Scotland Act 1998 to "re-reserve" such powers if the intention is for Westminster to legislate on such matters. Early indications suggest that this will be a controversial issue both constitutionally and politically.
Parliamentary Scrutiny and Secondary Legislation
The sheer amount of law that will be needed to legislate effectively for Brexit gives rise to a timing issue. How to pass everything that is required through Parliament in time for the UK's exit? The full parliamentary process takes time. Other, non-Brexit related legislation is already planned for the years ahead. This could amount to a heavy and in some cases distracting workload.
The Government's solution is for the Great Repeal Bill to create a power whereby problems that occur as a result of Brexit can be dealt with by way of secondary legislation, which will have been prepared as much as possible before the UK leaves the EU: As noted above, over 1,000 may be required. This power will be extended to ministers in the devolved legislatures so they are also able to amend legislation as appropriate.
On the face of it, secondary legislation seems like a sensible solution to the problem. Parliament will still be able to see all statutory instruments. Some statutory instruments will need to be debated and approved in Parliament. Others will only be debated if Parliament itself specifically calls for a debate. But the reality is that overall there will be less Parliamentary scrutiny where secondary legislation is used.
Brexit has already given rise to significant constitutional debate in relation to the process for triggering Article 50. We may now see more of the same as Government and the Houses of Parliament work out how to juggle the legislative task of Brexit between them.
A careful balance: Taking back control versus legal certainty
The White Paper provides useful clarity on the continuing role of the Court of Justice of the European Union (CJEU) and its decisions post-Brexit. Unsurprisingly, there will be no role for the CJEU in interpreting new UK law. We can safely assume that the Supreme Court will be re-established as the English court of final appeal. Referrals to the CJEU on questions of EU law will disappear.
However, for as long as EU-derived law forms part of UK law, as it will do in large amounts post-Brexit, the UK courts will have to determine the meaning of that law by reference to CJEU case law as it exists on the day the UK leaves the EU. Decisions of the CJEU will have the same binding status as decisions of the UK Supreme Court. In practice, this means that these decisions can be departed from only in rare instances.
Parliament will of course be able to change the law - and therefore overturn CJEU case law - if it sees fit. In addition, where there is a conflict between EU-derived law and new primary legislation passed by Parliament post-Brexit, the newer legislation, says the White Paper, will prevail. But where there is a conflict between two pre-Brexit laws, one EU-derived and the other not, the EU-derived law will continue to take precedence.
The reason for this approach is to ensure legal certainty. However some will be disappointed by what looks like a continuing CJEU influence for some time to come. In practice this is likely to remain an area of complexity. It remains to be seen to what degree, and how quickly, new UK caselaw begins to diverge both from CJEU jurisprudence as at Brexit day (which will initially be binding, but can potentially be departed from by Supreme Court and if over-turned by new primary legislation) and CJEU jurisprudence post-Brexit (which will not be binding).
Divergence with the remaining EU Member States on the interpretation of EU law, even to the extent such law continues on the UK statute books as EU-derived law post-Brexit, is also likely over time.
Overall, while on paper the Great Repeal Bill sounds simple, the legislative package that will need to accompany it is going to be complex. The text of the bill remains to be seen and will have to be passed by the House of Commons and the House of Lords. The process is likely to provide an important opportunity for debate about Parliament's role in Brexit and the final product may not reflect the White Paper in all respects.
As to the Great Repeal Bill itself, whatever approach is taken to the untangling of EU legislation from the UK, it is going to be a complex exercise. It will be a serious challenge to minimise omissions, uncertainty and inconsistency.