Out-Law News 3 min. read

UK government publishes 'repeal bill' ahead of Brexit

The UK government has published draft new legislation which is designed to transfer existing EU legislation to the UK statute book and give ongoing recognition to EU case law established before the UK leaves the EU.

The European Union (Withdrawal) Bill (66-page / 311KB PDF) was introduced before the UK parliament on Thursday morning. It had been dubbed the 'Great Repeal Bill'.

Legal experts at Pinsent Masons, the law firm behind Out-Law.com, described the Bill as highly complex, highly technical and highly unusual.

The publication of the new Bill follows the government's 'white paper' earlier this year which set out a three-point plan for converting EU law into domestic law at the point that Brexit takes effect. 

EU law and Brexit specialist Guy Lougher of Pinsent Masons said: "The Bill will confer on ministers a very broad power to correct any ‘deficiencies’ arising from the UK’s withdrawal from the EU. The breadth of this power, and the parliamentary safeguards that will apply to its use, are likely to be one of the most contentious aspects of the Bill and are likely to be the subject of significant challenges by opposition parties."

The Bill provides for the repeal of the current European Communities Act 1972, which gives recognition to the superiority of EU law in the UK which exists at the moment "on exit day", and the transfer of current legislation applicable in the UK through EU law directly onto the UK statute book.

According to the Bill, EU case law established prior to Brexit would also continue to have application in the UK, but no other "general principle of EU law" would form "part of domestic law", once the UK leaves the EU.

However, the Bill provides government ministers with the power to introduce new regulations before the UK parliament to challenge the validity of retained EU law. The regulations would need to be "approved by a resolution" of both the House of Commons and House of Lords.

In addition, no legal proceedings will be able to be brought before the UK courts post-Brexit where the claims consist of an alleged breach of EU law, nor will courts be able to "disapply or quash any enactment or other rule of law" or "quash any conduct or otherwise decide that it is unlawful, because it is incompatible with any of the general principles of EU law", under the draft legislation.

However, while a UK court or tribunal would not need to have regard to EU court rulings or case law made after exit day, they will be free to do so if it is "appropriate to do so".

Litigation expert Chris Dryland of Pinsent Masons said that this means that UK case law may still follow such EU case law "through choice rather than compulsion" post-Brexit, and that the situation may give rise to inconsistencies, if one UK court considers it appropriate to have regard to developments and another does not.

The caveat could also mean that lower courts in the UK may have to follow any precedent set by a higher UK court as to whether it is 'appropriate' to follow new EU case law, if applicable to the circumstances of the cases before them, Dryland said.

Parliamentary agent and government affairs expert Richard Bull of Pinsent Masons said: "Although the Bill is of modest size, having just 19 clauses and seven supporting schedules, its consideration will dominate the coming session of parliament. It is largely a technical measure, making ready the statute book for Brexit, ensuring continuity and stability. Nonetheless, some aspects of it are likely to prove very controversial."

"The EU Charter of Fundamental Rights, which protects civil, political and economic rights including workers’ rights to information from an employer and fair working conditions, is an exception to the general saving for EU law. Opposition parties can be expected to challenge this," he said.

"Opposition parties are also bound to be very wary of the proposed exercise by ministers, and, where applicable, the devolved institutions, of regulation making powers to re-write laws, albeit subject to approval by the relevant legislature. In order to fend off criticism that this power could be abused, the Bill provides that it can only be exercised within two years of the date on which we leave the EU. This will put a huge burden on the government to identify what laws require modification very rapidly: an immense challenge," Bull said.

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