Brexit: the grand repeal of EU law?


Wakefield MP Mary Creagh tabled broadly the same question to all major Government Departments last week, asking what proportion of existing EU legislation within each Department’s remit could not immediately be brought into UK law when the UK leaves the EU?

Unsurprisingly, she got very similar answers from the various Departments. This from the Ministry of Defence yesterday (30 November) is typical:

The Government will bring forward legislation in the next session that, when enacted, will repeal the European Communities Act 1972 and ensure a functioning statute book on the day we leave the European Union. This ‘Great Repeal Bill’ will end the authority of EU law and return power to the United Kingdom. The Bill will convert existing EU law into domestic law, wherever practical and in that context all relevant legislation is currently being identified and assessed.

Does this seemingly bland response tell us anything about the Government’s plans for Brexit?

On closer scrutiny, it seems to me that the ‘stock’ answers from Ministers to Ms Creagh reveal the following:

  1. We will not see relevant legislation until the next session, which will begin in late spring 2017.
  2. That legislation will be certainly after, and will have to take account of, the judgment(s) of an eleven-strong Supreme Court in the Miller and dos Santos judicial reviews due to be heard over 5-8 December 2016. These proceedings seek to establish that Parliament, rather than Government, should take the decision to start the process of leaving the EU (by triggering Article 50 of the EU Treaty).
  3. The sequencing of the proposed legislation with the decision to trigger Article 50 is very likely to depend on the outcome of those cases.
  4. In any event, the Government clearly plans to axe the ECA 1972 Act but, given that the “Great Repeal Bill … will convert existing EU law into domestic law”, it really does look a lot more like great continuity rather than great repeal.
  5. Whether repeal or continuity, this is a huge task. That is clearly shown by the statement yesterday – now over 150 days after the EU referendum – that “the relevant legislation is currently being identified and assessed”: ie the job has not yet been completed and has still a way to go.

It is unprecedented that: (a) all eleven member of the Supreme Court will hear the Miller and dos Santos proceedings (b) all of the devolved administrations within the UK have sought to intervene and (c) that the Supreme Court has made special public access and live streaming arrangements for the hearing.

Clearly, a high level of public interest in the proceedings is expected. Even so, it seems very likely that fewer people will attend the Court than turned up to the switching on of this year’s Christmas lights in Oxford Street.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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