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Farrer & Co | The Great Repeal Bill

When Theresa May called the snap election in April this year, her stated reason for doing so was to strengthen her hand in the Brexit negotiations. The Conservative Party was also hoping that with a beefed-up majority it would have an easier time pushing through legislative projects such as the Great Repeal Bill.

The rural and agricultural community has always recognised the scale of the challenge posed by the need to legislate for Brexit. However, prior to the publication of the exit polls on election night it could not have predicted that the challenge was about to become even greater. The Conservatives' loss of majority in the Commons is likely to make what was already a daunting task significantly more difficult.

What is the Great Repeal Bill?

On 29 March 2017 the Conservative government triggered Article 50 of the Treaty of Lisbon starting the process which was intended to take the UK out of the European Union in March 2019.

The Article 50 process gives effect to the UK’s withdrawal as a matter of EU Law.  However, new legislation will be needed to ensure that domestic law accommodates and reflects the UK's withdrawal from the EU. To that end, the day after triggering Article 50 the government set out details of its Great Repeal Bill plan in a White Paper entitledLegislating for the United Kingdom's withdrawal from the European Union. This detailed the profound changes which the government intended to implement as the UK prepares for its departure from the EU's jurisdiction.

How will it work?

The government claimed that the bill will "put the UK back in control of its laws" and "maximise certainty for businesses, workers, investors and consumers across the whole of the UK". To achieve those goals it said that the bill will do three main things:-

  1. It will repeal the European Communities Act 1972 which says that EU law is supreme to UK law. By doing so, the government says it will return power to UK institutions.
  2. It will convert EU law (as it applies in the UK) into domestic law on the day the UK leaves. These changes will come into effect only when the UK leaves the EU, not before. The government says that this will ensure "a stable and smooth transition".
  3. It will create powers to make secondary legislation. According to the government, this will ensure that the UK legal system continues to function correctly outside the EU by enabling corrections to be made to the laws that would otherwise no longer operate appropriately once the UK leaves the EU.

In short, the government intends that the repeal will transpose existing EU legislation into domestic law. In doing so, Parliament will have power to amend and repeal laws as necessary. The government recognises that following Brexit it is inevitable that some legislation will no longer work (for example, legislation referring to the involvement of an EU institution or legislation predicated on UK membership of an EU regime). With this in mind, the government intends that the bill "will create a power to correct the statute book where necessary."

Speaking before MPs in Parliament on 30 March 2017, Brexit Secretary David Davis said, "The bill will convert EU law into United Kingdom law, allowing businesses to continue operating, knowing the rules have not changed overnight, and providing fairness to individuals, whose rights and obligations will not be subject to sudden change."

The Challenge

Following publication of the Great Repeal policy paper, the National Farmers Union was quick to comment on the scale of the challenge. The day after publication, NFU President Meurig Raymond said:

"The task of transferring the vast expanse of existing EU law into UK law will be one of the biggest legislative challenges this country has ever faced. And farming is probably impacted more than any other sector, with a huge number of pieces of directly applicable EU legislation and national implementing regulations governing the way our farmers carry out their day-to-day businesses."

Perhaps the most challenging and controversial issue raised by the White Paper is the proposal to use secondary legislation to "correct" laws that will not operate appropriately once the UK has left the EU.

In March critics of the proposed bill raised concerns that it allows the government to enact its corrections to the statute book without the usual parliamentary scrutiny.  Shadow Brexit Secretary, Kier Starmer, said that the bill gave “sweeping powers” to the executive to change regulations and did not propose any safeguards against such powers.  The government insisted that the new measures will not be used to make policy changes. It said that “secondary legislation is a legislative process of long standing” and that it “should not be misinterpreted as 'executive orders' issued by the government”. 

However, the recent decision by the government to cancel next year's Queen's speech is an indication that it now recognises the complexity of the task ahead and that Brexit related legislation cannot be passed and scrutinised in a single year. Speaking after the election on 18 June 2017, Leader of the Commons Andrea Leadsom said "We will build the broadest possible consensus for our Brexit plans, and that means giving Parliament the maximum amount of time to scrutinise these bills by holding a two-year session of Parliament".

Conclusion

All sectors of industry now face a period of uncertainty as the UK's negotiations with the remaining EU 27 nations get off to a start. As the NFU points outs, farming will be one of the sectors most affected by Brexit. The agricultural community will therefore be keen to have its voice heard throughout this crucial period.  

Under the formal timetable dictated by Article 50, the UK is due to leave the EU in March 2019. Putting the Great Repeal Bill at the heart of the EU exit legislation and cancelling next year's Queen's speech appears to be an attempt by the government to reassure significant stakeholders that there will not be a legal meltdown in March 2019. The government, which has always planned to implement its repeal proposals in parallel with the exit negotiations, has much to do and its reduced majority has increased the scale of its task both in Brussels and at home.

If you require further information on anything covered in this briefing please contact William Charrington (william.charrington@farrer.co.uk; 020 3375 7171), or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Rural Property page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

 © Farrer & Co LLP, July 2017

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