The Great Repeal Bill

“The same rules and laws will apply on the day after exit as on the day before.” - Theresa May


The Government has today published its White Paper on the Great Repeal Bill – the legislation to incorporate existing EU law onto the UK statute book. The Bill will be integral to the UK’s orderly exit from the EU. The Government expects it to provide clarity and certainty for businesses, ensuring the same standards and rules on day one of exit. But the task of transferring the ‘acquis communautaire’ is huge, complex and comes with uncertainty itself. The White Paper acknowledges the scale of the task in the approach it sets out.  The Bill will have three principal elements:

  • repeal the European Communities Act;
  • convert EU law into domestic law; and
  • amend laws that would not operate correctly after we leave, using secondary legislation

The Government’s priority throughout this mammoth legislative task will be to hold the line against calls to diverge from the existing acquis. Any significant moves on that front would both undermine the Government’s negotiating position and make opposing the Bill easier for opposition parties.  Changes to policy and legislation, the Government will say, will be for Parliament once Brexit has happened. Arch-Brexiteers who want to see deregulation appear ready to bide their time, with one today seeking confirmation from David Davis that in two years’ time “this sovereign parliament will have power to remove or amend all this ghastly EU legislation”. So businesses and other organisations wanting to amend the legislation taking us out of the EU can expect firm resistance from the Government machine.  That is not to say that there won’t be opportunities to influence and shape outcomes that might be important to particular interests, or that unexpected threats won’t emerge. This cannot be a simple copy and paste exercise. Any rewriting of legislation poses the prospect of changes in emphasis, policy and effect, intentionally or not. Close engagement with the Government on the Bill and the secondary legislation that follows will therefore be important.

One of the biggest areas of contention is likely to be over the powers to allow secondary legislation to amend primary legislation (often referred to as Henry VIII clauses). Normally secondary legislation can only be accepted or rejected as a whole and not amended by Parliament, and there is limited opportunity for debate and votes.  The House of Lords is likely to take a particularly close interest in the Government’s approach on this issue and may feel empowered to amend the legislation as the Government has no clear mandate from the EU Referendum or the General Election.  Labour has called for enhanced safeguards, but the prospect of a concession across the board is unlikely given the scale of the legislative task and the time constraints the Government faces. What it highlights again, though, is the importance of businesses who see a need to fill a legislative gap post-Brexit engaging early with the Department of Exiting the European Union and other relevant departments.

The Bill will dominate the next parliamentary session, which will start with the Queen’s Speech expected on May 17th.  A range of other Bills, covering issues such as customs and immigration, will also be forthcoming.  For all the talk of everything staying the same, for now at least, it is clear that businesses need to watch the legislative agenda closely and its potential impact on them.  It will be those businesses which engage with the process from the start who will shape the new rules going forward.

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