The 'Great Repeal Bill'
As the Brexit process continues to be mired in legal challenges (which are explored in more detail in our full article, Brexit and UK law in 2017), one of the few concrete announcements made by the government on Brexit is the proposed introduction of the 'Great Repeal Bill'. This is intended to repeal the European Communities Act 1972 (‘ECA’), which gives effect to EU Treaties, provides the legislative basis for transposing EU law into domestic law, and gives precedence to binding provisions of EU law over inconsistent UK legislation. The Bill is also intended to incorporate all EU law into UK law on the UK's departure from the EU.
In fact, the Great Repeal Bill is not so much ‘great’ as inevitable and pragmatic. Clearly, the ECA has to be repealed on our exit from the EU, but it is doubtful it will provide much in the way of certainty. The House of Commons Library estimates that 13% of legislation enacted between 1993 and 2004 is EU-related. It suggests the review which will be required to decide which legislation to keep, which to repeal, and which to amend (in order to make sure cross references and the minutiae continue to work) will constitute one of the largest legislative projects ever undertaken in the UK.
Taking back control?
Even if we incorporate all existing EU law into UK law on exit, and even if we remain in the Single Market, that doesn't necessarily mean we can just carry on as we are now. While we can decide to keep or implement any EU laws we like once we leave, that does not mean the EU will regard us as being compliant for their purposes and this could act as a barrier to trade whatever the ultimate post-Brexit trading arrangements are.
By way of example, the government has already confirmed that the UK will apply the General Data Protection Regulation, as required, from 25 May 2018. While this is unsurprising given that we will still be an EU Member State on this date, it does not guarantee that the UK will continue to be deemed to be providing adequate protection to EU personal data once we exit the EU. The UK's Investigatory Powers Act is already attracting the scrutiny of data protection regulators, and there is a real risk that the EU will take a similar approach to the UK as it did to the USA in relation to Safe Harbor and deny the UK a decision of adequacy to allow it to import EU personal data.
To implement or not to implement?
One of the broader issues is what happens as EU law develops. EU laws will be passed between now and Brexit. Will those be implemented by the UK? Regulations (which are directly applicable and do not have to be implemented into local law) which come into force before we leave should, in theory, come into effect and be within the scope of the Great Repeal Bill, but does this also hold for a Regulation which is passed before we leave but which doesn't apply until after we leave?
The situation with Directives is still more complicated. Directives usually come into effect with a date by which Member States must pass implementing legislation. Typically, this period is eighteen months to two years depending on the complexity of the legislation, although it can be as little as six months. So what happens when the EU passes a Directive during the exit negotiation period? Do we draft legislation to implement it or not?
Even if we do pull EU law which currently applies to us onto the UK's statute books on exit, what happens when those laws are developed at an EU level? We will have to decide whether to progress with the EU (remembering that we will have no say in EU legislation) or to diverge, at which point the law is no longer the same and this could, again, impact on any Single Market trading arrangements.
The Great Repeal Bill is to be announced in the next Queen's speech and is intended to pass into law during 2017, although only leaving the EU will trigger its provisions. It is, however, unlikely to provide a simple 'fix' to the problem of how to disentangle UK and EU law.