Brexit: parliamentary scrutiny Contents

Chapter 7: Phase 4—implementation

Domestic legislation

70.Some domestic primary legislation will be required to give effect to the act of withdrawal, notably the repeal of the European Communities Act 1972. Directly consequential amendments to primary legislation, including to the Acts enshrining EU law within the devolved settlements, will also have to come into effect simultaneously.

71.Some light was cast upon the timing and scope of this legislation by the Prime Minister’s speech on 2 October 2016. She announced that the Government would include a ‘Great Repeal Bill’ in its 2017 Queen’s Speech. This Bill, once enacted, would “mean that the 1972 Act … will no longer apply from the date upon which we formally leave the European Union”.46

72.The Prime Minister also said that, at the same time as repealing the European Communities Act 1972, the Government would “convert the ‘acquis’—that is, the body of existing EU law—into British law”. This will be a major undertaking. As a first step, we assume that there will be a saving provision, to ensure that the many thousands of pieces of subordinate legislation made under the 1972 Act are retained, pending further review. Such an approach would, as the Prime Minister stated, “give businesses and workers maximum certainty as we leave the European Union”. At the same time, all this subordinate legislation may need to be updated, for instance to replace references to EU institutions with references to the appropriate domestic institutions.

73.The Prime Minister’s commitment to convert the acquis into domestic law will raise still more complex issues, when it comes to giving effect in domestic law both to obligations currently arising from directly applicable EU law, and to judgments of the Court of Justice of the European Union interpreting that law. The extent to which the Government will use primary legislation to deliver its commitments is still unclear, though the Secretary of State told us that the Government was “trying to avoid” a Bill with wide-ranging ‘Henry VIII clauses’—clauses that would enable primary legislation to be subsequently amended or repealed by means of subordinate legislation, thereby curtailing parliamentary scrutiny.47

74.The domestic courts will also face the challenge of interpreting subordinate legislation that originally implemented EU directives, once those directives have ceased to apply in the UK. In the course of our consideration of the operation of Article 50 in March 2016, Sir David Edward KCMG, PC, FRSE, a former judge of the Court of Justice of the European Union, highlighted a few of the complexities that this would entail:

“You would need to enact in law everything that you wanted to keep in law, which is currently either the consequence of the direct effect of the treaties or, for example, the product of a directive. Under the current system of law, the courts are to interpret implementing legislation in light of the directive. If the directive no longer applies, you have to consider, ‘Do I have enough in the existing legislation for the courts to proceed without looking at the directive, or am I to instruct the courts to construe it in the light of the directive as if the directive applied?’”48

75.Finally, the Prime Minister touched briefly in her speech on the review of the entire EU acquis that would follow withdrawal, confirming that “Any changes will have to be subject to full scrutiny and proper Parliamentary debate”. Although we did not explore this issue in the present inquiry, we are aware that many commentators have highlighted the complexity of the task of reviewing more than 40 years of EU law. The former Treasury Solicitor, Sir Paul Jenkins, described it on 24 June as the “largest legal, legislative and bureaucratic project in British history except for a world war”.49 However the Government’s commitment to full parliamentary scrutiny is delivered—whether by using primary legislation, or by providing for enhanced parliamentary scrutiny of subordinate legislation—the impact upon the two Houses (including, in this House, the Secondary Legislation Scrutiny Committee and the Delegated Powers and Regulatory Reform Committee) will be profound.

Further treaty negotiations

76.Finally, we note that there is a strong likelihood that negotiations between the UK and the EU will continue beyond the point of withdrawal. Such negotiations will almost certainly be needed if the Government decides to seek a comprehensive trade agreement with the EU, and if there is no extension of the two-year deadline.

77.The Government will also, once withdrawal has been completed, seek to negotiate trade agreements with third countries—a process it cannot formally initiate for as long as the UK remains part of the EU, since external trade is subject to exclusive EU competence.

78.The same considerations that we have set out in earlier chapters of this report, with regard to parliamentary scrutiny of the withdrawal negotiations, will also apply to further negotiations on a trade agreement. As Professor Wyatt told us, “Trade agreements have moved on. They used to be mainly about tariffs, but now they are relatively little about tariffs. They are about non-tariff barriers and harmonisation of regulatory standards.”50


79.The ‘Great Repeal Bill’ announced by the Prime Minister on 2 October 2016 would formalise the UK’s withdrawal from the EU in domestic law, by repealing the European Communities Act 1972, with effect from whatever date is specified in the withdrawal agreement. We support the Government’s aim of maintaining the body of existing EU law in force, pending further review, but note that giving effect to this aim may be more complex than the Government has yet acknowledged.

80.The Government has yet to set out its strategy for conducting a full review of EU law post-withdrawal. While we welcome the Prime Minister’s commitment to full parliamentary scrutiny, we note that the legislation resulting from the review will have a profound impact upon Parliament, potentially dominating the domestic legislative agenda for an extended period. We therefore recommend that the Government publish an outline strategy for the post-withdrawal review of EU law as soon as possible, in order to inform consideration by the two Houses of how to deliver an appropriate and manageable level of parliamentary scrutiny.

81.Negotiations on trade agreements, with the EU and with third countries, may continue for several years post-withdrawal. Like the negotiations on withdrawal, these will reach deeply into domestic policy-making, and the same considerations in relation to parliamentary scrutiny apply.

46 Theresa May’s Conservative Party conference speech on Brexit (2 October 2016): [accessed 4 October 2016]

48 Oral evidence taken on 8 March 2016 (Session 2015–16), Q 5 (Sir David Edward KCMG, QC, PC, FRSE)

49 Quoted in Global Government Forum, 24 June 2016 [accessed 21 September 2016]

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