Repeal Bill rings in changes

We finally had some clarification on Brexit at the Conservative Party conference last week when the Prime Minister indicated that the UK Government would formally trigger the two-year process for leaving the EU before the end of March 2017 … meaning it’s likely to be early 2019 when the UK finally leaves. The announcement caused a dramatic fall in the price of sterling, but a dramatic rise in share prices which will invariably have had an impact on British business.

But the muddy waters cleared slightly with the announcement of a Great Repeal Bill, which will be used to repeal the European Communities Act 1972 from the UK statute books. It is the Act that causes EU law to be upheld in the UK and has formed the basis of various European treaties and legislation. Interestingly, unlike the decision to trigger the ‘Article 50’ process, the Great Repeal Bill will be subject to Parliamentary discussion and approval, and there is expected to be some opposition from ‘Remain’ campaigners amongst MPs, particularly those from north of the border. Nevertheless, the current Conservative majority means that the House of Commons is likely to pass the Bill, although its passage through the House of Lords may be somewhat less smooth.

The High Court decided in November 2016 that the Government couldn’t use royal prerogative to trigger the Brexit process, and must instead obtain Parliament’s consent. That decision is going to appeal in December, and that appeal hearing has just become a lot more interesting.

One of the Supreme Court judges that will hear the appeal has controversially spoken out at a seminar in Malaysia. It is believed that Theresa May has prepared a short and simple Act of Parliament authorising the commencement of the Brexit process, just in case the Government loses the appeal. Such an Act should pass easily through the House of Commons, although the House of Lords could prove more difficult.

However, Lady Justice Hale has publicly questioned whether this is enough. She has questioned whether simply authorising Theresa May to give notice under Article 50 is sufficient, or whether Parliament must agree on ‘what happens next’ before Article 50 can be triggered.

In other words, she has suggested that Parliament may have to agree to the entire text of the ‘Great Repeal Bill’ (ie. the Act of Parliament that will deal with the transition period from EU law to national UK law) before triggering Article 50, rather than triggering Article 50 first and spending the next 2 years agreeing the text of the Bill.

If the other 10 judges on the Supreme Court were to agree with Lady Justice Hale, then it could delay Brexit by 2 years or more – we could be looking at 2021 and beyond. But on the up-side, the sooner negotiations begin on the Great Repeal Bill, the sooner UK businesses will learn what is in store.

Ignoring that for the moment, the theory behind the Great Repeal Bill is actually very straightforward and makes a lot of sense – in essence:

• the UK Government will cease to abide by EU laws and EU court decisions well before Brexit, and
• all EU laws will be ‘copied-and-pasted’ into UK law so that, over time, the UK Government can decide which laws it wants to keep and which it wants to remove. Some of these will be removed before Brexit, and others afterwards.

And because the European Communities Act 1972 will have been repealed, the decision on which laws to discard into the legal dustbin will be a decision for the UK Government alone.

So that gives us something to focus on, and we’ll watch the progress of this Great Repeal Bill with interest once it is announced in the Queen’s Speech in the spring. It will not, in itself, tell us which European-inspired laws the UK will retain, but it will be the mechanism to allow the UK Government to make those decisions in areas such as trade, employment, data protection, financial services, consumer rights and industry-specific regulation, so expect lobbying from all areas of UK business trying to get their issues on the early agenda.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.