The Great Repeal Bill

This announcement gives partial answers to two topic questions: what is the role of Parliament in Brexit? And how will English law look immediately after Brexit. This blog looks at the second of these questions.

The Great Repeal Bill will come into force at the point Brexit takes effect. It will repeal the European Communities Act 1972 which implemented EU law in English law. The Bill will convert existing EU laws into English laws which can then be amended or repealed according to Parliament’s wishes. The suggests that there will also be a great “ossification” in that we will be referring back to EU law as it stands on the day of Brexit for many years, perhaps decades, thereafter.

In announcing this Bill, the Prime Minister was emphatic that this will bring to an end any possibility of the European Court of Justice in Luxembourg deciding questions of law in this country.

There is likely to be much discussion about this Bill in the years to come. Three questions immediately come to mind:

First, whilst this mechanism is a pragmatic solution to dealing with the impact of much of the canon of EU law on English law, it will not work perfectly in all cases. For example, there are EU Regulations which refer to subordinate decisions on EU institutions which will no longer apply. In other cases, the EU text will simply make no sense once the UK has left the EU.

Second, if the writ of the ECJ is no longer to run in the UK, the UK courts will be the ultimate body for interpreting all laws, including those which were, until Brexit, EU laws. All the political language suggests that decisions of the ECJ post Brexit which inform the interpretation of those parts of EU law absorbed by the Great Repeal Bill into English law will not be relevant in England. If this is right, it cannot be long before the same words, in the same language, applied for the same purpose will mean different things on each side of the Channel.

Finally, we have not yet heard anything of the Parliamentary processes which will be used to amend or repeal laws inherited from EU laws. The review of these laws is a substantial task (see my first point above). If it is to be done by Acts of Parliament, then this exercise could account for a substantial proportion of Parliamentary time for years to come; but if done by secondary legislation, which would give Ministers a very wide discretion (much wider than that they enjoyed when implementing EU law under the European Communities Act 1972) and raise profound questions of democratic legitimacy.