At the Conservative Party Conference in October 2016, the Prime Minister announced that a ‘Great Repeal Bill’ would be included in the next Queen’s Speech. Its working title notwithstanding, the ‘Great Repeal Bill’ will not actually repeal much EU law. Whilst it will repeal the European Communities Act 1972, thus stopping EU law applying to the UK, it will, at the same time, preserve the effect of what is now EU law by transforming the current body of EU law into UK law. The purpose of doing so is to provide legal certainty: the Government’s intention is that, wherever practical and appropriate, the same laws will apply in the UK the day after Brexit as the day before.
That much is known. Beyond that there is little detail publicly available as to how the Government intends to take forward this process. Our conclusions and recommendations are therefore necessarily conditional and framed in general terms. We welcome, however, the Government’s commitment to publishing a White Paper on the ‘Great Repeal Bill’. It should contain sufficient detail—including draft clauses—to allow for a proper debate on the Government’s approach. The UK’s exit from the EU must be taken forward in a way that takes due account not only of the practical imperatives that will flow from the exit process, but also of the fundamental importance of maintaining constitutional propriety.
Both the Government and Parliament face a unique challenge in converting the current body of EU law into UK law—not least in determining the exact scope of that task. The body of EU law is found in a number of different places, and in a number of different forms. Some is embodied in existing UK primary legislation; some in secondary legislation. Other elements of EU law are directly effective in the UK (by virtue of the European Communities Act 1972), but are not actually written anywhere in the UK’s statute book. Yet further elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union, regulatory rulings by EU agencies, or in the interpretation of our own courts. The Government will need to take the lead in setting out for Parliament exactly what will be required to preserve the effect of EU law following Brexit.
The task of adapting this body of law to fit the UK’s circumstances following Brexit is complicated not only by the scale and complexity of the task, but also by the fact that in many areas the final shape of that law will depend on the outcome of the UK’s negotiations with the EU. Yet preparations for the amendment of EU law will need to be made before it comes into effect as UK law, in order that those changes will take effect on the day of Brexit. These amendments will sometimes be minor, for example removing references to EU institutions, and sometimes substantial, such as where an EU regulatory regime needs to be replaced with a UK regime.
The degree of uncertainty as to what exactly the process of converting EU law into UK law will involve—and, in particular, the need to take account of the UK’s ongoing Article 50 negotiations with the EU—will almost certainly necessitate granting the Government relatively wide delegated powers under the ‘Great Repeal Bill’, both to amend existing EU law in preparation for the day of Brexit and to legislate for new arrangements following Brexit where necessary.
The process of converting the body of EU law, as described by the Government, will consist of two distinct phases. First, the initial preservation of EU law by converting it into UK law with such amendments as are necessary to make it work sensibly in a UK context; and second, a longer-term process in which Parliament and the Government determine the extent to which (what was) EU law will remain part of UK law. It is vital that a distinction be drawn between these two discrete processes: the more mechanical act of converting EU law into UK law, and the discretionary process of amending EU law to implement new policies in areas that previously lay within the EU’s competence. The ‘Great Repeal Bill’ is intended to facilitate the first aspect of the process. The second should be achieved through normal parliamentary procedures.
The latter process will mostly take place after Brexit, although the Government have stated that they will introduce primary legislation to make substantive changes to certain areas currently covered by EU law, including immigration and customs law, alongside the process of domesticating the body of EU law through the ‘Great Repeal Bill’. Law in these areas will be contingent upon the outcome of negotiations with the EU, so this primary legislation may also contain wide-ranging delegated legislation to allow Government to adapt their contents in light of the final withdrawal agreement.
The challenge facing Parliament—and on which we focus in this report—is how to grant the Government relatively wide delegated powers for the purpose of converting EU law into UK law, while ensuring that they cannot also be used simply to implement new policies desired by the Government in areas which were formerly within EU competence.
We consider that Parliament should address this challenge in two distinct ways. First, by limiting the scope of the delegated powers granted under the Great Repeal Bill, and second, by putting in place processes to ensure that Parliament has on-going control over the exercise of those powers.
In relation to the first, we suggest that a general provision be placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only:
One tool available to Parliament to reduce the constitutional risks associated with wide-ranging delegated powers is sunset clauses. Sunset clauses provide that a particular provision or power ceases to have effect on a certain date or after a specified period of time. The extent to which they will be a viable means of mitigating the constitutional risks posed by the delegation of extensive powers to the Government under the ‘Great Repeal Bill’ will depend on the specifics of the Bill. We do not therefore recommend in detail how they should be used or developed.
We note, however, that sunset clauses might be used either in relation to the exercise of delegated powers granted to the Government, or with respect to the content of secondary legislation passed under those powers. With respect to the former, we consider that the Government would need to present a very strong justification for not including sunset clauses in relation to extensive powers conferred for the purpose of converting EU law into UK law. Regarding the latter: if it is clear that parliamentary scrutiny of particular issues will be curtailed during the transposition process—perhaps as a result of time pressures close to the day of Brexit—then we would expect that sunset provisions be used to ensure that those provisions were brought before Parliament again for proper consideration after the UK’s exit from the EU.
Turning to Parliamentary scrutiny of secondary legislation laid under the ‘Great Repeal Bill’, we recommend that:
(1)The Minister sign a declaration in the Explanatory Memorandum to each statutory instrument amending the body of EU law stating whether the instrument does no more than necessary to ensure that the relevant aspect of EU law will continue to make sense in the UK following the UK’s exit from the EU, or that it does no more than necessary to implement the outcome of negotiations with the EU.
(2)The Explanatory Memorandum to each statutory instrument sets out clearly what the EU law in question currently does (before Brexit); what effect the amendments made by the statutory instrument will have on the law (as it will apply after Brexit) or what changes were made in the process of conversion; and why those amendments or changes were necessary.
(3)The Government makes a recommendation for each statutory instrument as to the appropriate level of parliamentary scrutiny that it should undergo. We would expect that a statutory instrument which amends EU law in a manner that determines matters of significant policy interest or principle should undergo a strengthened scrutiny procedure.
(4)A parliamentary committee(s) consider the Government’s recommendation, and decide the appropriate level of scrutiny for each statutory instrument laid under the ‘Great Repeal Bill’. If the two Houses perform this function separately, then it would seem appropriate in the House of Lords for this sifting function be performed by the Secondary Legislation Scrutiny Committee. Alternatively, a Joint Committee could be established to carry out this role on a bi-cameral basis.
(5)Where the relevant committee(s) determines that a statutory instrument laid under the ‘Great Repeal Bill’ amends EU law in a manner that determines matters of significant policy interest or principle, it should undergo a strengthened scrutiny procedure. We do not attempt at this stage to define exactly how this strengthened scrutiny procedure should operate, or whether one of the existing statutory models should be adopted. We recognise that existing models for enhanced scrutiny can prove resource intensive and time-consuming—in our view, the only essential element of whatever strengthened procedure is selected is that it should provide an opportunity for a statutory instrument to be revised in the light of parliamentary debate.
The volume and complexity of secondary legislation likely to be laid under the ‘Great Repeal Bill’, and indeed under other primary legislation related to Brexit, will put significant strains on Parliament’s current processes. Scrutiny committees will need to have the capacity, expertise and legal support to cope with the additional workload. We look to the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, both of which have extensive experience in the scrutiny of secondary legislation, to advise the Liaison Committee as to what will be required to deal with the secondary legislation flowing from the ‘Great Repeal Bill’ and other Brexit-related legislation.
The UK Government will need to make clear what it envisages the role of the devolved institutions to be in the process of domesticating EU law. Will ministers for the devolved institutions be responsible for preparing amendments to those elements of EU law that will, following Brexit, fall within their competence? Or will the UK Government have exclusive responsibility for such matters prior to Brexit day, following which the devolved institution will take on responsibility for elements within devolved competence?
The domestication of EU law will also have implications for the devolution settlements. The UK’s exit from the EU will provide the devolved legislatures with the freedom to legislate in devolved areas that are currently circumscribed by EU law. This will mean that the UK Government and the devolved administrations will need to manage new interfaces—and potentially overlapping responsibilities—between reserved matters and devolved competence in areas where the writ of EU law no longer runs. The UK Government and devolved administrations will need to agree, before Brexit, how those new interfaces will be managed.