Chapter 2: The ‘Great Repeal Bill’
The European Communities Act 1972
10.The European Communities Act 1972 (the ECA) is the primary legislative vehicle whereby the UK meets its EU Treaty obligations in respect of giving domestic effect to EU law. The ECA facilitates fulfilment of those Treaty obligations in two ways:
- EU law that has domestic effect without the need for national implementing measures: Some EU legislation, known as ‘regulations’, is ‘directly applicable’.4 This means that once enacted by the EU, regulations become part of the body of law applicable within individual Member States without any need for Member States to take steps to implement regulations (e.g. by enacting domestic legislation). It is also possible for EU law (whether it is a regulation or some other type of EU law) to have ‘direct effect’, provided that it fulfils certain criteria pertaining to matters such as its clarity. If EU law has direct effect, it can give rise to rights and obligations that are enforceable within Member States’ legal systems. The expressions ‘directly applicable’ and ‘directly effective’ are often used interchangeably,5 so in the remainder of this Report, we will use the term ‘directly effective’ to refer to those aspects of EU law that take effect in the UK without the need for national implementing measures. Such effect is possible as a matter of UK constitutional law thanks to section 2(1) of the ECA, which provides for directly effective EU law to operate within the UK legal system.
- EU law that needs to be implemented via domestic legislation: Some EU law—in particular, EU law that takes the form of ‘directives’—is neither directly applicable nor directly effective. A directive requires Member States to adjust their domestic law so as to achieve whatever results are specified in the directive. Section 2(2) of the ECA authorises the making of secondary legislation for the purpose of implementing directives (as well as other EU obligations that lack direct effect).
11.In the light of this, the effect of repealing the ECA would (for present purposes) be twofold. First, repealing section 2(1) would excise from the domestic legal system all directly effective EU law. Second, repealing section 2(2) would deprive secondary legislation that implements EU law of any legal basis, rendering such secondary legislation invalid.6
12.This would result in the removal from UK law of the vast majority of EU law. However, not all EU law that requires domestic implementation has been implemented via the ECA. Some has been given domestic effect by enacting other primary legislation (notable examples include the Equality Act 2010 and the Consumer Rights Act 2015) or through delegated legislation made under primary legislation other than the ECA. Repealing the ECA will not affect EU law that has been given effect in those ways, although of course it will be open to Parliament, via the ‘Great Repeal Bill’, to make changes to UK legislation other than the ECA that implements EU obligations.
The preservation of EU law
13.Its working title notwithstanding, the ‘Great Repeal Bill’ may not in fact repeal much EU law. The Government’s intention, set out in the White Paper The United Kingdom’s exit from and new partnership with the European Union, is that the Bill will “preserve EU law where it stands at the moment before we leave the EU”.7 In effect, a snapshot will be taken of EU law as it exists immediately prior to the UK’s departure from the EU, and EU law as recorded by that snapshot will be transformed by the ‘Great Repeal Bill’ into domestic law.
14.The preservation of the existing body of EU law does not, of course, imply that the Government, or indeed future Governments, will retain all existing EU law post-Brexit. Rather, the intention seems to be that the initial preservation of EU law will give the Government and Parliament the time, following Brexit day, to undertake a proper process whereby the body of EU law can be sifted, and decisions taken as to which aspects of (what was) EU law are to be retained, amended or replaced.8 What is envisaged can therefore be thought of as forming two distinct phases:
(1)the initial preservation of EU law by converting it into UK law; and
(2)a longer-term process that will determine the extent to which (what was) EU law remains part of UK law.
15.As we note below however (see paragraphs 19–21), the Government has announced that some areas of the law will be the subject of separate pieces of primary legislation—presumably to allow more substantive changes to be made to what is now EU law at the same time as it is transposed into UK law.
16.It is vital that a distinction be drawn between these two discrete processes: the more mechanical act of converting EU law into UK law, and the discretionary process of amending EU law to implement new policies in areas that previously lay within the EU’s competence. The ‘Great Repeal Bill’ is intended to facilitate the first aspect of the process. The second should be achieved through normal parliamentary processes. While we expect that much of the latter process will take place after Brexit, the Government have stated that they will introduce primary legislation to make substantive changes to certain areas currently covered by EU law, including immigration and customs law, alongside the process of domesticating the body of EU law through the ‘Great Repeal Bill’.9
The ‘Great Repeal Bill’
17.The mechanics by which the ‘Great Repeal Bill’ will achieve the conversion of the body of EU law into UK law are not yet clear, but it is likely that the Bill will provide a new legal basis for delegated legislation passed under the European Communities Act 1972 (once that Act has been repealed). Meanwhile, EU law given effect by or under other primary legislation will remain in force anyway, the ECA’s repeal notwithstanding, unless or until specific steps are taken to repeal or revoke it.
18.In addition, however, the Bill will need to provide a mechanism for incorporating directly effective EU law (see paragraph 10 above) into UK law. This is likely to be achieved by a general provision to the effect that, following the UK’s exit from the EU, all directly effective EU law is to have continuing effect in UK law as it stood at the time of the UK’s exit. It is possible to conceive of an alternative approach to transposing directly effective EU law by giving Ministers the power to transpose individual elements of EU law (such as particular regulations) by making statutory instruments.
19.Whatever approach is chosen will, no doubt, be subject to certain exceptions. For example, the Government have said that, in order to allow votes on “substantive policy choices … we expect to bring forward separate legislation in areas such as customs and immigration”.10 It can be surmised, therefore, that certain areas of the law—perhaps those which are most likely to need amendment following negotiations during the withdrawal process (see paragraph 15 above)—may well be excepted from the scope of the ‘Great Repeal Bill’ altogether so that they can be dealt with separately in primary legislation.
20.However, we note in passing that if this is what is envisaged, it raises questions about how primary legislation enacted alongside the ‘Great Repeal Bill’ will be scrutinised. In particular, if such primary legislation is intended to deal with matters that are likely to be dependent upon what is agreed as part of the withdrawal negotiations, it is unlikely to be possible to finalise the content of such legislation until relatively close to the end of the two-year negotiation period—raising the spectre that these pieces of primary legislation will also contain extensive delegated powers to allow the Government to adapt the legislation to the contents of the final withdrawal agreement.
21.In addition, of course, if the matters addressed by such primary legislation are carved out of the ‘Great Repeal Bill’—such that they do not form part of the snapshot of EU law that will be preserved by it—it will be necessary to ensure that the legislation, like the ‘Great Repeal Bill’ itself, is ready to be brought into force immediately upon Brexit.
22.It is also worth noting that the position in relation to EU law that will form part of the snapshot taken by the ‘Great Repeal Bill’ will be complicated by two factors. First, EU law will continue changing up until the date that the UK leaves the EU. This is not in itself problematic, since the snapshot will not be taken until immediately prior to Brexit. However, the evolving content of the body of EU law that will eventually form the snapshot will complicate the task of ensuring that the snapshot can sensibly be accommodated, immediately upon Brexit, within the broader framework of UK law.
23.Secondly, what the snapshot will need to contain will depend on the outcome of the UK’s negotiations with the EU. As Professor Alison Young told us, “the problem is you are almost chasing a moving target.”11 In some cases this will involve not only planning for the UK’s eventual relationship with the EU, but also providing a legal base for transition arrangements that will be temporarily put in place following Brexit. The Secretary of State for Exiting the European Union, David Davis MP, told the House of Commons that
“Delivering a smooth, mutually beneficial exit, while avoiding a disruptive cliff-edge, will be the key. A never-ending transitional status is emphatically not what we seek, but a phased process of implementation for new arrangements—whether immigration controls, customs systems, the way we operate and co-operate on criminal and civil justice matters, or future regulatory and legal frameworks for business—will be necessary for both sides. … [T]he time needed to phase in new arrangements in different areas may vary.”12
Non-legislative elements of the EU body of law
24.There is another element of EU law that the ‘Great Repeal Bill’ will need to address. Professor Paul Craig explained that:
“for an EU lawyer the acquis includes, among other things, the case law of the CJEU [Court of Justice of the European Union] and the General Court … If you want a true snapshot of the acquis it has to include the CJEU and GC case law. … [I]f it does not you do not have a complete snapshot of the acquis—it is as simple as that.”13
25.Professor Alison Young added a final strand: “in addition … you have situations where we have UK laws that expressly rely on interpretations or implementation measures from European agencies.” Following the Article 50 negotiations, it is likely that the UK will no longer be affected by the decisions of many of these agencies. In the event, however, that these agencies continue to play a role for the UK following Brexit, Professor Young notes that “we have the question of whether we still want to continue to be bound by any forms of decisions relating to interpretations from those agencies that we are using in national law.”14
26.We note that, in addition to transposing the body of EU legislation as set out above, the Government will need to consider how to treat those elements of EU law that are not legislative in nature—for example, the case law of the Court of Justice of the European Union or the history of regulatory decisions by European institutions. In particular, the Bill should provide clarity as to the status of the Court of Justice’s judgments, including the extent (if any) to which those judgments can or must be followed or taken account of by UK courts following Brexit. It will also be necessary to consider whether a distinction should be drawn in this regard between judgments given before and after the date on which the UK leaves the EU.
27.In our view, it would be politically unlikely that UK courts would have to continue to follow the judgments of the Court of Justice following Brexit. UK law will start to diverge from EU law (even where UK law is derived from what was, before Brexit, EU law)—that is an inevitable consequence of the UK’s exit from the EU. That being the case, the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts “may have regard to” the case law of the Court of Justice (and we stress that it should be optional) in relation to judgments made both before and after the UK’s exit from the EU in order to assist in the interpretation of UK law. This will allow UK courts to take into account the judgments of the Court of Justice, but not be bound by them.
The process of converting EU law into UK law
28.While some EU law can simply be converted into UK law without further amendment, significant areas of EU law will require amendment. EU law in its amended form cannot be made operative until the UK leaves the EU since until then the UK remains bound to comply with EU law. However, preparations for the modification of EU law on the day of Brexit must be anticipated by the ‘Great Repeal Bill’. Amendment will be needed:
- Where EU law would have no relevance or make no sense following Brexit (for example, because it concerns arrangements, such as the ‘four freedoms’, that will have no application to the UK following Brexit unless provided for in a withdrawal or transitional agreement);
- Where EU law needs to be amended to fit into UK law (for example, to remove reference to EU institutions and insert reference to UK institutions, or to create a new domestic regulatory regime to replace an EU regime).
29.Further amendments to domesticated EU law (i.e. the body of EU law that will be made part of UK law after Brexit) will be needed in order to implement the final withdrawal agreement. While the Government will need to get the separate approval of Parliament to this agreement, it may well choose to use powers granted under the ‘Great Repeal Bill’ to prepare some of the necessary changes to domesticated EU law to take effect on Brexit-day.
30.Some of the amendments required to the body of EU law will be technical in nature: these might involve, for example, replacing references to EU institutions with UK institutions or changing definitions which may not be workable in the domestic context. Thought will need to be given to ambulatory references to EU law in existing UK law. Other changes will require more substantive decisions to be taken on issues of policy or principle. The British Bankers’ Association gave us examples of when substantive decisions might be required:
“We anticipate such questions arising in areas where transposition necessarily involves some amendment because there is no way under national law to replicate directly a particular provision. For example, where a provision only works because there is reciprocity within the EU. There may also be EU legislation where the underlying regulatory technical standards have yet to be issued by the applicable EU body and it will be necessary to determine whether the UK will implement these standards (even after Brexit) or take a different approach.”
31.The Leader of the House of Commons, David Lidington MP, gave us a similar explanation:
“[I]t is clearly necessary, to ensure some predictability for British business, that we are able to provide a UK legal basis for the acquis. That is particularly the case when it comes to those items of European legislation that do not have specific transposing legislation here—most obviously EU regulations that have direct effect by virtue of the 1972 Act. It will then be necessary for the repeal Bill to include delegated powers of some kind. The most obvious need will be that where a piece of European legislation refers to an EU-level regulator or arbitrator of some kind, we will need to substitute a UK regulator or arbitrator instead.”15
32.There are, therefore, at least two things which will need to happen in this context before Brexit. First, it will be necessary to identify which aspects of EU law can be straightforwardly domesticated; which aspects would make no sense if domesticated; and which aspects need to be amended prior to Brexit day. Second, legislative provisions will need to be put in place before Brexit day (even though they will not be able to take effect until Brexit day) to make those necessary amendments of relevant aspects of EU law.
Mechanisms for amending EU law
33.The Government’s White Paper states that “the Bill will enable changes to be made by secondary legislation to the law that would otherwise not function sensibly once we have left the EU, so that our legal system continues to function correctly outside the EU”.16 David Lidington expanded on this description in evidence to us. He stated that the “primary legislation is what will repeal the 1972 Act and provide a UK legal basis for the acquis. The secondary legislative powers will be intended to ensure that the acquis remains operable in the UK unless and until such time as Parliament in the future wants to make amendments.”17
34.In addition, the Department for Exiting the EU has indicated that the Bill will include delegated powers “giving the Government the flexibility to take account of the negotiations with the EU as they proceed”.18 This reliance on delegated legislation to make the necessary changes to EU law being brought across into UK law (see paragraphs 28–32 above), as well as to make certain changes that might be required as a result of negotiations with the EU, has been widely expected.19
35.In general, our witnesses felt that managing the necessary amendments to EU law via delegated legislation, rather than through primary legislation, was justified. The Association of British Insurers noted that “The ‘Great Repeal Bill’ brings the prospect of considerable further delegation of powers … We do not object to this in principle and it is hard to see any other way in which the volume of regulation can be managed”.20 The British Bankers’ Association agreed, and justified this approach by stating that “the Government will not be introducing new legislation via this route, rather it will be ensuring the continuation of existing law,”21 an argument echoed by the Bar Council.22
36.The WWF-UK drew a distinction between the task of transposing directly effective EU law, and the need to amend EU law already enacted in UK primary and secondary legislation (see paragraph 10 above). In relation to the former, they stated that: “we … accept the sheer scale of the legislative task facing the Government, and that it may be unrealistic to insist that every piece of transposition is done by primary legislation.”23 In the latter case, however, they suggested that:
“in the context of environmental legislation … it is particularly important that, where existing EU laws have been implemented into UK laws (either by way of primary or secondary legislation), these are in the main amended or repealed only by Parliament, or only after sufficient parliamentary scrutiny has been provided. It must only be in exceptional and limited circumstances that Henry VIII clauses are used to amend existing environmental legislation or that transposed by way of the GRB in secondary legislation.”24
37.We are not convinced that this distinction—between the amendment of EU law already embodied in UK legislation and that which currently has direct effect—is important. The key distinction, as we conclude in paragraph 16 above, is between the necessary amendments that must be made to the existing body of EU law as a consequence of the UK’s exit from the EU, and substantive, more discretionary changes that the Government may seek to make to implement new policies in areas that previously lay within the EU’s competence.
38.Many of the concerns we heard were related to the possibility that the Government might use delegated powers granted under the ‘Great Repeal Bill’ to overhaul EU law following Brexit without going through proper parliamentary processes. Liberty, for example, told us that “Whilst it is accepted that lawmakers face a serious challenge in legislating for withdrawal [from the EU], Ministers must not be handed virtually untrammelled power to make and unmake matters needing real democratic scrutiny and legitimacy.” In particular, they noted that
“it would therefore be an extraordinary and unprecedented abuse of these powers to allow Ministers to pull apart longstanding provisions of UK law after Brexit. Whilst there may be some areas in which technical or tying-up changes may be needed, and in which these powers may be appropriate, Henry VIII clauses cannot be permissibly used in respect of substantive areas of law–much less to repeal fundamental rights by Ministerial fiat.”25
39.The point was made by several of our witnesses26 that the need to amend EU law already embodied in UK primary legislation mean the Government will likely seek Henry VIII powers from Parliament. This Committee has historically urged Parliament to exercise especial caution when considering Henry VIII powers.27 In the context of the ‘Great Repeal Bill’, however, the usual distinction between Henry VIII powers (that can be used to enact secondary legislation amending or repealing primary legislation) and other delegated powers (that do not extend to amending or repealing primary legislation) is of less import. As we discuss below (see paragraphs 55–67), directly effective EU law has legal status in the UK only by virtue of the ECA, much of it through delegated legislation made under the ECA, and it is unclear what status it will have when transposed into UK law. Much of the legislation laid under, or that has effect through, the ECA would, if it had originated in the UK Parliament rather than in Brussels, been passed as primary rather than secondary legislation.
40.In these circumstances, it is essential that Parliament consider each of the powers in the Bill with additional caution, considering in each case what body of law will actually be affected by a particular delegated power. Parliament must not assume that, simply because a particular delegated power would only affect a piece of secondary legislation or an element of what is currently directly effective EU law, the delegation of power requires less scrutiny than a delegation of power that happens to affect an element of EU law that is currently embodied in primary legislation (and would thus have to take the form of a Henry VIII power). In short, the distinction between Henry VIII and other delegated powers is not in this exceptional context a reliable guide to the constitutional significance of such powers, and should not be taken by Parliament to be such.
41.Which? made this point in its written evidence to our inquiry, stating that existing secondary legislation passed under the ECA “should not now be treated as capable of amendment as though it was similar to other secondary legislation”. It argued that it was only appropriate to enact this law via secondary legislation in the first place “due to the fact that there was little if any discretion” as to its content. They concluded: “Secondary legislation passed using the powers in the EC Act should be considered for amendment in the same way as the processes that enable scrutiny of primary legislation.”28
42.Yet the challenge faced by both Parliament and Government is that, given the complexity of the task undertaken by the ‘Great Repeal Bill’, it will be difficult tightly to define, in advance, the limits of the delegated powers granted under the Bill without potentially hobbling the Government’s ability to adapt EU law to fit the UK’s circumstances following Brexit. We do not think it is realistic to assume that the Government will have worked out, in advance of the Bill being considered by Parliament, what amendments will be needed to the corpus of EU law. That being the case, it is unrealistic to assume that Parliament will be able tightly to limit the delegated powers granted under the Bill—because it will not be clear what, exactly, they will be required to do.
43.What is important is that the Bill should recognise the distinction we draw above in paragraph 16, between necessary amendment to the law to adapt it to Brexit, and discretionary amendments that are intended to implement changes to policy. The delegated powers granted by the Bill should allow the Government significant leeway to adapt EU law, without allowing those same powers to be used to effect substantive change to implement Government policy.
44.We have considered various ways in which the Government could be granted a greater degree of latitude in the delegated powers granted under the ‘Great Repeal Bill’ while simultaneously restricting their exercise to the task of converting relevant aspects of EU law into UK law. Professor Craig suggested that a “substantive constraint” could be built into the Bill, explaining that “By substantive constraint I mean a constraint which would say, ‘There are certain types of things which you simply cannot do by delegated legislation. …’”29 We believe there is merit in this suggestion. An overarching restriction that constrains the use of the powers contained in the Bill to a very limited number of purposes would, at least to some extent, offset concerns about other aspects of the breadth of the powers.
45.The ‘Great Repeal Bill’ will likely propose that Parliament delegate to the Government significant powers to amend and repeal (primary) and revoke (secondary) legislation to enable it to carry out the significant task of preparing the ground for the conversion of the body of EU law into UK law within the timeframe set out for the UK’s exit from the EU.
46.Parliament should ensure that the delegated powers granted under the ‘Great Repeal Bill’ are as limited as possible. However, the degree of uncertainty as to what exactly the process of converting EU law into UK law will involve—and, in particular, the unknown outcomes of the UK’s ongoing Article 50 negotiations with the EU—will almost certainly necessitate the granting of relatively wide delegated powers to amend existing EU law and to legislate for new arrangements following Brexit where necessary.
47.The ‘Great Repeal Bill’ is thus likely to involve a massive transfer of legislative competence from Parliament to Government. This raises constitutional concerns of a fundamental nature, concerning as it does the appropriate balance of power between the legislature and executive.
48.Parliament must consider how best to limit and to exercise oversight of the Government’s use of these extensive delegated powers. In addition, it is important that both parties recognise that the ‘Great Repeal Bill’ will be an exceptional piece of legislation, necessitated by the extraordinary circumstances of Brexit: while the Government may make a case for a wide array of discretionary powers, this should in no way be taken as a precedent when considering the appropriate bounds of delegated powers in future. Nor should the exceptional circumstances constituted by Brexit be taken in and of themselves to be a sufficient answer to legitimate concerns relating to the proper balance of constitutional authority as between Parliament and the Government.
49.We recognise that, following the UK’s exit from the EU, the Government will no doubt wish to implement new policies in areas which were formerly within EU competence. We would be concerned, however, should the Government seek to do so using delegated powers which were granted for the purpose of converting the body of EU law into UK law. We would be similarly concerned if the Government, via the ‘Great Repeal Bill’, sought to secure delegated powers for the broader purpose of implementing new policies post-Brexit. EU law should initially be transferred into UK law with as few changes as possible (taking into account the result of the Article 50 negotiations with the EU and the need to adapt EU law to make sense in the UK’s domestic legal framework). If the Government subsequently wish to make changes of a substantive nature then those changes should be brought forward as primary legislation and be subject to the usual degree of parliamentary scrutiny.
50.Parliament may, therefore, wish to consider implementing a general restriction on the use of delegated powers granted under the ‘Great Repeal Bill’. Whilst this will be a matter for detailed scrutiny by the Lords Delegated Powers and Regulatory Reform Committee when the Bill is introduced, we would suggest that a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only:
- so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and
- so far as necessary to implement the result of the UK’s negotiations with the EU.
51.The Bill should also clearly set out a list of certain actions that cannot be undertaken by the delegated powers contained in the Act, as another means of mitigating concerns that may arise over this transfer of legislative competence.
Contingency planning
52.As a final aside, we note that when the outcome of negotiations becomes clearer, the Government will no doubt start preparing amendments to the body of EU law that will be domesticated by the ‘Great Repeal Bill’ upon Brexit, as well as drafting other primary legislation to implement the outcome of those negotiations. Yet it must not be forgotten that the withdrawal agreement negotiated between the UK Government and the EU might fail to pass close to the end of the two-year period triggered by Article 50. This might occur, for example, as a result of the European Parliament failing to agree to the withdrawal agreement. Alternatively, the UK Parliament might reject the negotiated agreement. In either case, it possible that, as Mr David Jones, Minister of State in the Department for Exiting the EU, stated in the House of Commons, “we will have to fall back on other arrangements … ultimately we would be falling back on World Trade Organisation arrangements”.30
53.Professor Bell told us that:
“I could put it in a more stark form: the European Parliament, in its session in March 2019, which is practically its final session before the elections, chooses not to agree and therefore pushes the UK out without a soft landing. At that point, Parliament would have to convene to do something in an emergency in the last week in March 2019. I think that may be different from, as it were, the planning. I do not think you plan towards having to do everything in March 2019, but you may have to have a contingency plan for what might happen should the European Parliament, for whatever reason, not agree in that session.”31
54.Should this occur, the UK will need to have a version of EU law, amended to fit the circumstances of a non-negotiated Brexit, put in place by the date of the UK’s exit from the EU. The Government must give careful consideration to what kind of contingency plan would be needed in order to deal with any rejection of the Brexit deal by either side.
The status of domesticated EU law
55.A question arises as to the status of any EU law converted to UK law under the ‘Great Repeal Bill’. In this respect, it may be helpful to distinguish between:
(1)Existing UK primary legislation that has its origins in EU law (e.g. primary legislation enacted in order to implement EU obligations). Such primary legislation will continue to have legal effect, and to have the status of primary legislation, in spite of Brexit and in spite of the ‘Great Repeal Bill’ (unless the ‘Great Repeal Bill’ provides otherwise).
(2)Secondary legislation made under primary legislation other than the ECA in order to implement EU obligations. Such secondary legislation will remain in force as secondary legislation notwithstanding Brexit and notwithstanding the repeal of the ECA.
(3)Secondary legislation made under the ECA in order to implement EU obligations. The repeal of the ECA will cause such secondary legislation to cease to have effect unless (as is likely) the ‘Great Repeal Bill’ provides otherwise.32
(4)Domesticated EU law that was previously directly effective. If domesticated via a general provision, this will have whatever status the ‘Great Repeal Bill’ accords it. If instead individual elements are converted by statutory instrument, it will have the status of secondary legislation.
56.The status of EU law embodied in existing UK primary legislation or in secondary legislation made under Acts other than the ECA (categories (1) and (2) above) is clear—it will continue to have legal effect notwithstanding Brexit and with no change to its hierarchical status. The situation is more complicated with regard to categories (3) and (4). We consider each in turn below.
Secondary legislation laid under the European Communities Act
57.As stated earlier in this report (paragraph 17), it is likely that the ‘Great Repeal Bill’ will ‘save’ secondary legislation made under the ECA (category (3) above) by providing a continuing legal basis for such legislation notwithstanding that repeal of the ECA. However, while this would make the status of such legislation clear—in that it would retain the status of secondary legislation within the UK’s legal order—there is a question over whether that law is all embodied in the appropriate legislative form. The Bar Council, for example, drew our attention to the secondary legislation passed under section 2(2) of the ECA and stated that:
“It would be a matter of great constitutional concern if the ‘Great Repeal Bill’ were to contemplate the possibility that repeal, or other significant change to the substantive content, of law currently deriving from EU Directives could be effected by a process similar to the making of ECA s. 2(2) instruments. Such a process would bring about a significant democratic deficit which would undermine the legitimacy of resulting legislation. It is one thing to use a secondary instrument to implement legislation that has been the subject of an extensive legislative process at European level. It is another thing entirely to use that process to implement policy which simply emerges from ministerial decision-making within the confines of Whitehall departments or Cabinet committees.”33
58.So while EU law embodied in secondary legislation made under section 2(2) of the ECA will technically be secondary legislation, that is a consequence of the fact that it simply implemented law agreed at an EU level—it does not mean that the law it encompasses is not important enough to be worthy of primary legislative status.
59.At present, UK legislation, including primary legislation, that is incompatible with EU law given effect under section 2(2) of the ECA is not an obstacle to the legal effect of delegated legislation made under that provision. This is so both because the ECA accords primacy to EU law over UK law, and because the ECA is a ‘constitutional statute’, meaning that it can continue to provide a legal basis for delegated legislation made under section 2(2) notwithstanding incompatible primary legislation (unless such legislation is explicitly incompatible). We note that, following the repeal of the ECA, secondary legislation made under section 2(2) of the ECA will no longer be afforded primacy over incompatible UK law (unless the ‘Great Repeal Bill’ seeks to provide otherwise). The Government may wish to consider whether this change has the potential to unsettle the clarity of any current areas of the law. A similar issue would arise if the Bill were to grant Ministers the power to domesticate individual elements of directly effective EU law by enacting such law in the form of statutory instruments (see paragraph 18 above).
The status of domesticated directly effective EU law
60.The situation is more complicated as regards category (4): domesticated law that was previously directly effective. At present, the ECA 1972 provides EU law with a unique status—it takes precedence over any conflicting UK law. This will no longer be the case following the repeal of the ECA 1972. If individual elements of such law are transposed by statutory instrument they will, of course, merely have the status of secondary legislation. However, if instead EU law is domesticated by the ‘Great Repeal Bill’ via a general provision (see paragraph 18) it will presumably have the same hierarchical constitutional status as the Bill itself: i.e. it will have the status of UK primary legislation. As a result, in the event of conflict with other UK primary legislation, it will take priority over legislation enacted prior to the ‘Great Repeal Bill’ but will cede priority to subsequent UK legislation that is explicitly or implicitly incompatible with it. Since this category of law currently has a status that is superior to primary legislation, we can see no constitutional objection to according it the status of (regular) primary legislation.
61.However, even if EU law domesticated by the ‘Great Repeal Bill’ via a general provision has the status of primary legislation in this hierarchical sense, such domesticated EU law will not actually be primary legislation, in the sense that it will not appear on the face of the ‘Great Repeal Bill’ or on the face of any other UK primary legislation. Rather, it will be incorporated into UK law by virtue of the reference made to it in the ‘Great Repeal Bill’. There are two issues arising from this fact that we will briefly explore.
62.First, if a general provision is used to transpose directly effective law, then the Government will need to provide for a copy of the body of EU law as brought across by the Bill to be publicly available. At present, the official text of EU law is recorded and maintained at an EU level, and is available through websites such as EUR-Lex. It would obviously be inappropriate for UK law to only be accessible through an EU database—particularly given that EU law will continue to evolve, making finding the exact texts that make up the ‘snapshot’ of EU law preserved by the Bill more difficult as time goes by. The Government should make clear how it intends to preserve and publish the exact text of the ‘snapshot’ of (what was) directly effective EU law if imported by means of a general provision in the ‘Great Repeal Bill’. This will clearly not be necessary if the Government instead chooses to convert individual elements of directly effective law by statutory instrument (see paragraph 18).
63.Secondly, while the whole body of directly effective EU law (i.e. category (4) above) domesticated by the ‘Great Repeal Bill’ via a general provision will have the same hierarchical status for the purposes of judicial interpretation, a more nuanced approach will need to be adopted in relation to its amendment or repeal.
64.If this category of EU law had been enacted domestically, it would naturally have been split between primary and secondary legislation according to its content (and indeed the same is true of the body of EU law currently enacted by secondary legislation under the ECA). This in turn raises questions about how in the future amendments will be made to EU law domesticated by the ‘Great Repeal Bill’, whether the Bill should make specific provision in this regard and, if so, what provision should be made.
65.If the Bill were to make no such provision at all, then it would give effect to a ‘snapshot’ of EU law, as it existed immediately prior to Brexit. If it were (as it will inevitably be) necessary to amend any part of the body of domesticated EU law in the future, that could be done by Parliament enacting primary legislation. Such primary legislation could provide that a given element of EU law (e.g. a particular regulation) no longer formed part of the body of EU law domesticated by the ‘Great Repeal Bill’. The new primary legislation could then, on the face of the legislation, set out replacement provisions. Alternatively, the new primary legislation could provide that the relevant EU law is to be treated as having been amended in some respect; the ‘Great Repeal Bill’ would then bite upon the relevant EU law in its ‘amended’ form.
66.Requiring primary legislation every time a change needed to be made to the body of domesticated EU law would, however, be extremely cumbersome, particularly if the matter was technical or otherwise minor. It is therefore likely that the Government will seek delegated powers to perform surgery upon the body of domesticated EU law. Yet this would raise difficulties of its own. In particular, it could mean that large volumes of (what would then be) UK law would, because of its unusual pedigree, be susceptible to amendment using delegated powers.
67.The ‘Great Repeal Bill’ will need to make provision not only in relation to processes by which (i) directly effective EU law is selected for domestication and (ii) amended in the course of domestication, but also in relation to (iii) the process by which domesticated EU law can subsequently be amended. It is likely that this will need to involve a distinction between—or a mechanism for drawing a distinction between—technical amendments to be accomplished via secondary legislation and larger amendments involving policy choices that can be accomplished only via primary legislation. If this is not done, the risk arises of certain areas of law—simply as a result of the happenstance that they began life as directly effective EU law—being permanently vulnerable to being reshaped through the use of delegated powers. Similar issues arise with respect to statutory instruments passed under section 2(2) of the ECA which will, over time, need to be re-enacted in a way that reflects a more appropriate division between primary and secondary legislation.
Sunset clauses
68.One tool available to Parliament to reduce the constitutional risks associated with wide-ranging delegated powers is sunset clauses. Sunset clauses provide that a particular provision or power ceases to have effect on a certain date or after a specified period of time.
69.If the overarching restriction proposed in paragraph 50 above is included in the Bill, it may be unnecessary to include wide-ranging sunset clauses since, following the conversion of the body of EU law into UK law and the implementation of negotiations with the EU, there would be no legal basis for the Government to use the delegated powers contained in the Bill. In this event, however, particular consideration would need to be given to how the body of EU law would be maintained until re-enacted on a more balanced footing of primary and secondary legislation in future (see paragraphs 55-67 above on the status of EU law). Provision might need to be made for a separate set of powers, exempt from the overarching restriction, to come into effect upon termination of a limited time period following Brexit to allow the Government to keep the body of EU law up to date, but not to make any substantive changes.
70.Alternatively, sunset clauses could be placed to come into effect once a particular delegated power had been used. It is hard to see how a hard and fast deadline could be applied—some aspects of EU law might be subject to a transition period (see paragraph 23 above), meaning that the domestication of a certain aspect of EU law might take place well after Brexit day. But it might be possible for the Bill to allow the Government to use a particular power for a defined purpose—to bring into UK law a particular aspect of EU law—following which the power would lapse.
71.Baroness Fookes suggested that there was “a possibility of using sunset clauses … in the sense that you would say, ‘Right, we will give you—the Government—the power you need to do X, Y and Z, but, at the end of a certain period of time, that will come to an end and you will have to produce something fresh’. Then it could be considered in the more measured way that I would hope would be in the best interests of the country.”34
72.We note above (see paragraphs 57–67) that much of the body of EU law will be brought across either as a single category of primary legislation or as a single body of secondary legislation. It will be necessary, over time, to re-enact much of the body of EU law, with an appropriate division between primary and secondary legislation. Parliament may wish to consider whether, as a way of providing impetus to this project, they wish to include sunset powers that will repeal domesticated EU law after a set period of time, necessitating that it be re-enacted as UK legislation rather than simply being incorporated in UK law by operation of the ‘Great Repeal Bill’. This period might be lengthy—for example, 10 years—but it would ensure that, in time, the whole body of EU law would be properly debated and enacted by the UK Parliament.
73.The extent to which sunset clauses will be a viable means of controlling the powers granted to the Government under the ‘Great Repeal Bill’ will depend on the specifics of the Bill. We do not, therefore, attempt to recommend how they might best be used or developed. But if the Government seek discretion to domesticate and amend significant elements of the body of EU law by secondary legislation, then it is essential Parliament consider how that discretion might be limited over time. The Government would need to present a very strong justification for not including sunset clauses in relation to extensive powers conferred for the purpose of transposing UK law into EU law. In addition, if it is clear that parliamentary scrutiny of particular issues will be curtailed during the transposition process—perhaps as a result of time pressures close to the day of Brexit—then we would expect that sunset provisions be used to ensure that those provisions were brought before Parliament again for proper consideration after the UK’s exit from the EU.
4 Article 288, Treaty of the Functioning of the European Union, OJ C 326 (consolidated version of 26 October 2012)
5 Dashwood, Dougan, Rodger, Spaventra and Wyatt, Wyatt and Dashwood’s European Union Law (Oxford: Hart Publishing, 2011) 6th Edition, p 245
6 Although EU law would still have a residual effect under the Interpretation Act 1978, section 16.
7 UK Government, The United Kingdom’s exit from and new partnership with the European Union, p 10
8 UK Government, The United Kingdom’s exit from and new partnership with the European Union,
paras 1.1–1.2
16 HM Government, The United Kingdom’s exit from and new partnership with the European Union, p 10
18 Department for Exiting the European Union, ‘Government announces end of European Communities Act’, 2 October 2016: https://www.gov.uk/government/news/government-announces-end-of-european-communities-act [accessed 1 March 2017]
19 See, for example, written evidence from Dr Richard Lang (LEG0048), The Scottish Parliament (LEG0043), British Bankers’ Association (LEG0047), The Chartered Institute of Taxation (LEG0044), Bar Council (LEG0042), Association of British Insurers (LEG0041), Mark Ryan (LEG0034), Professor Colin T. Reid (LEG0033) and Secondary Legislation Scrutiny Committee (LEG0050)
26 See, for example, written evidence from Bingham Centre for the Rule of Law (LEG0052), British Bankers’ Association (LEG0047), Liberty (LEG0037) and Low Incomes Tax Reform Group (LEG0039)
27 See, for example, Constitution Committee, Legislative and Regulatory Reform Bill (11th Report, Session 2005–06, HL Paper 194).
32 Although, as noted in footnote 6, there would a residual effect by virtue of section 16 of the Interpretation Act 1978.