Legislating for Brexit

Now that Article 50 has been triggered, we explore the legal processes involved in disentangling the UK from the EU.

Converting EU law into UK law

Paradoxically, the Government’s first legal priority on leaving the EU will be to ensure that the entire body of EU legislation and case law at the point of Brexit is preserved. That is the job of the “Great Repeal Bill”, announced by Theresa May last Autumn and now fleshed out in more detail in the Government’s recently published White Paper. 

The Bill has yet to be published, but judging by the White Paper key features will include:

• Repeal of the European Communities Act: As well as reversing the rule that EU law takes precedence over domestic law, this will render invalid all secondary legislation made under the ECA, which is the route Government has normally chosen over the past 40 years to give effect to EU law.
• A giant cut and paste exercise: All EU law at the point of Brexit (except those provisions that need to be changed to accommodate the Brexit deal) will be incorporated into UK law. This will include not only all the legislation that the Government has ever passed to give effect to EU directives, but also provisions of EU law (such as regulations and some provisions in EU treaties) that have had “direct effect” in the UK. This giant corpus of law will continue to have effect until Parliament decides otherwise.
• EU case law given new status: Decisions of the EU courts at the point of Brexit will be given the same status as judgments from the UK’s Supreme Court. That means that they will be binding on all the nation’s lower courts, and only departed from by the Supreme Court in exceptional circumstances. However this body of case law will only continue to be relevant if it concerns the interpretation of EU law incorporated into UK law by the Great Repeal Act.
• Extensive delegated powers: Cutting and pasting may not be enough for much of the EU legislation incorporated into domestic law. Some adjustments will be required to make it work in its new setting – for example replacing references to EU-wide institutions with the new UK equivalent. Given the volume of EU legislation we are dealing with, these adjustments will need to be made by secondary legislation. The Bill will also need to establish a dividing line between this kind of tidying up exercise (for which delegated powers are appropriate) and wider policy-related changes which should normally be implemented by primary legislation. 
  o New rules of interpretation: At present the ECA establishes a clear rule that EU law takes precedence over domestic law. The repeal of the ECA will mean that this will no longer be the case for new legislation, but the White Paper envisages that this rule will need to be preserved if there is a conflict between the newly naturalised EU legislation and home grown domestic provisions that pre-date Brexit.

Other Brexit legislation

It is estimated that as many as 15 Bills may be required to implement various elements of the Brexit deal. Immigration and Customs are two obvious examples. However, given that the Bills will need to have passed through Parliament before the final details of any deal are concluded, they too are likely to include extensive delegated powers. 
 

International treaties

The UK is party to a number of treaties by virtue of its membership of the EU, but not a member in its own right.

There are also a number of regulations on cross-border collaboration (such as the Brussels Regulation which creates EU-wide jurisdiction rules in cross-border disputes) which cannot simply be “copied back” into UK law by the Great Repeal Bill. 

In these cases it is thought that the UK will have to enter into new agreements as part of the divorce arrangements. This could involve a new bi-lateral arrangements with the EU, or acceding to conventions, such as the Lugano Convention on reciprocal enforcement of judgments, to which it is currently a party in its capacity as an EU member state. 
 

Transitional provisions

It seems pretty clear that disputes based on facts which arose prior to the date of Brexit will remain subject to the jurisdiction of the EU courts. 

Continued jurisdiction of the EU courts may also be agreed during any transitional period between the conclusion of the Brexit divorce and the start of any new relationship between the UK and the EU. 
 

How are the new agreements with the EU to be policed?

One key advantage of the single market is that all EU member states are subject to the rulings of the EU courts in the event of any dispute. Given the political sensitivity of the UK remaining directly subject to their rulings once any transitional arrangements have unwound, some alternative solution will need to be found. 

In the Brexit White Paper published earlier this year, the UK Government referred to dispute resolution mechanisms in a number of international trade agreements as possible templates. This will be a matter for negotiation with the EU, both in relation to the withdrawal agreement, and, looking further ahead, in connection with the UK’s new relationship with the EU. 
 

A slow divergence, rather than sudden change

Like it or not, EU law is likely to continue to apply in the UK in one form or another for many years to come.

Some divergence is inevitable over time, but the scale and speed of change will depend on a number of factors. These include how much room for manoeuvre the UK is left with under its new relationship with the EU, and the resources and energy a future government has to devote to major legislative change.