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            Great Repeal Bill published – Legal Roadmap to Brexit?

            The primary ambition of the Bill is to ensure legal (and therefore business) continuity to every extent possible as of the date of exit from the European Union, whilst at the same time removing the overarching supremacy of EU law in the UK. 

            Date: 19/09/2017

            Overview

            The European Union (Withdrawal) Bill, otherwise known as the Great Repeal Bill ("the Bill") has now been published. It is very technical, dense and complex.  Some aspects are as expected while others reflect the Government's desire to have its "cake and eat it" and much of the Bill is focussed on devolution (not dealt with in this paper).  The primary ambition of the Bill is to ensure legal (and therefore business) continuity to every extent possible as of the date of exit from the European Union (currently expect to be 30 March 2019, "Exit Day"), whilst at the same time removing the overarching supremacy of EU law in the UK.  The Bill assumes that the UK will not be part of any organisation such as EFTA and/or the EEA (sometimes known as "Norway-style" models) and that therefore it will not be bound to reflect and accept EU law (also sometimes referred to as the "Acquis Communautaire" to any degree post Exit Day.

            It should be understood that this is in effect a first draft in the legislative process that is bound to undergo significant debate and potential change prior to any adoption.  The main opposition political parties have vowed to challenge the Bill extensively.  However, the Bill as it stands gives at least an indication of how the Government proposes to tackle the changeover bound to occur around Exit Day. 

            At a very high level only, what this appears to tell us thus far is that:

            • The European Communities Act 1972 (the act that installed EU law supremacy to begin with) will be repealed on Exit day.
            • EU law in force and effect before Exit day will be transposed into UK law for similar practical effect after Exit Day, albeit such law (known as "retained law") will need adapting to enforcement by UK agencies where applicable.
            • After Exit day EU law no longer has supremacy.

            There are no real surprises here as the above principles were noted in the Government's previous White Paper.  As might have been expected, "the devil is in the detail" however, thus where matters become more complex is when looking at the detail of how the courts are to apply laws and the power of Ministers in making those laws.

            The Courts

            All courts and tribunals are bound to apply "retained law" after Exit Day, save for the Supreme Court that will not be bound by the pre-existing EU caselaw on retained law (it must judge whether to accept or depart from such case law, as it would any domestic case law).   However, the Courts can NOT quash any act or conduct after Exit Day on the basis that it is contrary to EU law.

            Furthermore, after Exit day:

            • No one will be allowed to seek damages (known as "Francovich" damages) because the UK has failed to implement EU law properly. This appears to apply to the situation where the UK has failed to apply pre-Brexit EU legislation.
            • Any post Exit Day modifications to EU law (e.g. by an EU institution or the European Court of Justice "ECJ") will not apply to the retained law in its UK format.
            • Any such modifications and clarifications to EU law from the ECJ applying prior to Exit Day should be taken into account (save for the exception of the Supreme Court noted above).
            • There will be no supremacy of retained law over other UK law (as currently applies to EU law), hence future newly enacted UK law may counteract retained law in due course.
            • No decision of a court or tribunal can be referred to the ECJ.

            Ministerial Powers

            As expected the Bill provides Ministers with so-called "Henry VIII powers" to deal with so-called "deficiencies" in retained law which may arise due to the process of cutting and pasting EU law, i.e. the process of transposing EU law into UK law of similar effect in order to provide continuity for business.  The primary problem with this is that existing EU law is interwoven with the enforcement mechanisms of the current EU institutions and it is those institutions that will no longer have sway over the UK after Exit day.  For EU laws to be transposed effectively therefore and have meaning and effectiveness, many alternative enforcement mechanisms will need to be put into place.

            The new ministerial power is intended to ensure that the new UK laws are compatible with the UK being a third party outside the EU as opposed to a member state. Given the time frame and large amount of EU law this is arguably necessary and allows for transferring any functions currently carried out by EU bodies to UK bodies (albeit opposition political parties are concerned as to the potential for abuse of this new ministerial power).  In addition, the powers can be applied in wider situations and can be exercised by Ministers:

            • Where the law in question is of no practical application or is redundant.
            • To modify the functions conferred on EU bodies as regards particular prior EU law and includes replacing, abolishing or modifying the function to be applied to any "replacement" UK bodies.
            • Introduce the power to levy fees and charges in relation to such functions.
            • Where it includes reciprocal arrangements between EU member states which are no longer "appropriate".
            • Where the Minister decides that secondary legislation is required to implement any withdrawal agreement reached with the EU (NB. such legislation is however subject to Parliamentary approval of both Houses)

            The above powers do not extend to imposing new criminal or taxation provisions and do not extend to the Human Rights Act. In addition, any new ministerial powers made under this provision have an automatic "sunset" clause of two years.

            Parliamentary Scrutiny

            The Bill must, of course be passed in Parliament, not a foregone conclusion given the Government's much reduced majority since the last general election.  As noted above, opposition political parties have vowed to challenge the Bill at every turn.

            Conclusion

            There are any number of unanswered questions arising as a result of the Bill, including the very practical amongst the very academic.  It is also clear the principle of continuity is easy enough to say but far less easy to implement and whilst the provision for new ministerial powers enables decisions to be taken, it does not tell business in advance how this will be done, so a great deal of uncertainty remains.

            DWF Brexit Blueprint

            Related people

            Jonathan Branton

            • Partner // Head of Public Sector // Head of EU Competition

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