Eight key ingredients of the EU Withdrawal Bill

Now that the EU Withdrawal Bill (formerly styled the “Great Repeal Bill”) has passed its second reading in the House of Commons, we take a snapshot view of its main components.

However, with 64 pages of amendments already published, there are bound to be significant changes as it progresses through Parliament.

1. Repeal of the European Communities Act

Section 1 reads as follows: “The European Communities Act 1972 is repealed on exit day”. If only the rest of the Bill were that straightforward!
Notice that a firm date is not given for Brexit in the Bill. “Exit day” will be fixed by Ministers once the formal divorce agreement with the EU has been concluded.

2. Preservation of “EU-derived domestic legislation”

Subject to minor exceptions, the Bill will preserve all legislation made under the European Communities Act – ie secondary legislation made (in whole or in part) to implement EU law that does not take direct effect. Otherwise this would all fall away when the ECA is repealed..

The Bill will also preserve all other legislation made to comply with EU law, even though the powers in the ECA were not used.

3. A giant cut and paste exercise for direct EU law

All direct 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 regulations (such as the General Data Protection Regulation) and provisions of treaties that have direct effect (for example the right to equal pay between the genders).

Identifying this body of “converted” legislation will not be easy. The explanatory notes published with the Bill give a good idea of the provisions of the EU Treaties that the Government currently thinks will be converted into UK law in this way.

4. A new status for EU case law

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 “retained EU law” – ie EU law preserved or incorporated into UK law by the EU Withdrawal Act.

5. Extensive delegated powers

Saving or cutting and pasting may not be enough for much of the EU legislation preserved or newly incorporated into domestic law by the EU Withdrawal Act. 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 seeks 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. The precise wording is likely to be hotly debated.

6. New rules of interpretation

At present the European Communities Act 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 it will continue to apply to domestic legislation made prior to Brexit. The same principle will also apply in most circumstances where existing domestic legislation is “modified” after Brexit.

7. A huge publication job

The Bill stipulates how the body of EU law converted into UK law must be published. It will no longer be possible to rely on the relevant EU websites, since the corpus of EU law by which the UK is currently bound will begin to diverge after Brexit.

8. Complex transitional provisions

How to manage the transition between the old and new legal regimes on Brexit day is a topic in itself. For example what happens to cases involving the UK which are pending before the European Court of Justice on exit day? What happens to future disputes based on facts that have arisen prior to Brexit?

The Bill makes some attempt to provide for this, though the subject is likely to be a contentious part of the negotiations between the EU and the UK. These elements of the Bill are therefore likely to change as negotiations progress.