Last week the Department for Exiting the European Union took the wraps off an historic White Paper entitled Legislating for the United Kingdom’s withdrawal from the European Union. Over the course of its thirty-nine pages, the Department, headed by the Brexit Secretary, David Davis MP, lays out its plans for The Great Repeal Bill, a piece of legislation that will transfer all EU legislation to which the UK is currently subject, onto the UK statute books.
So what does all this mean? The proposed title of the Bill has an almost Victorian grandiosity to it, for sure, but will it do exactly what it says on the tin?
First of all, the Great Repeal Bill will not exactly “repeal” EU legislation in the sense that we will no longer be subject to it; quite the opposite in fact. This may be bad news for those eager to be free of excessive red tape (more on that below), but the alternative would be chaos as nobody would know what they were supposed to be doing and two years is not even close to being long enough to draw up replacement legislation (which would likely end up looking quite similar anyway). The main purpose of the Bill will in fact be to essentially copy and paste existing EU law into UK law. Whatever EU laws we are subject to at 11:59pm on our last day as EU members, we will still be subject to (albeit with some technical alterations to make it function properly in the UK as a standalone nation) at the stroke of midnight.
Sounds simple enough, right? Well, no, because simply running EU legislation through the proverbial photocopier wouldn’t work. Numerous pieces of EU legislation, for example, refer to the involvement of particular EU institutions and others work on the basis of the UK being a member of, or having access to, certain EU systems. This is where one of the proposed Bill’s more controversial aspects comes into play. Using secondary legislation, the Government will be able to make alterations to the law where necessary, using a much quicker and less-scrutinised procedure than that used for ordinary primary legislation.
It is the special powers over the use of secondary legislation that so far seem to have a lot of people hot under the collar. Many see it as a subversive move by the Government to scrap aspects of EU legislation that it simply doesn’t like or that lobby groups would rather see consigned to the waste paper basket. Indeed among the more hysterical of social media posts are those calling out the Government for wanting to use the special powers to eliminate human rights protection and to scrap the NHS. Perhaps there’s another version of the White Paper out there that enunciates these despotic plans, but here at Simply-Docs the version we’ve read hints at nothing of the sort. The stated aim of the Great Repeal Bill is to ensure that the Government has the necessary power “to correct or remove the laws that would otherwise not function properly once we have left the EU”. For anything that goes beyond transposing EU law into UK law, normal primary legislation will be required and, as per the White Paper, “the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU”. Furthermore, the White Paper makes it clear that the special powers will be time-limited and will not exist beyond the period needed to ensure the clear and certain legal transition. The proof of the pudding, of course, is yet to be seen and it is to be hoped that the drafting of the Bill will be carefully scrutinised in Parliament to ensure that the powers are tightly controlled in line with the intent stated in the White Paper.
As for the courts, the buck currently stops with the Court of Justice of the European Union when it comes to EU law. To simply remove and forget this status after the date of our departure from the EU would again stand to create a great deal of uncertainty. Judgments of the Court of Justice handed down prior to our departure, therefore, will continue to be referred to in post-Brexit cases and will be given the same status as a judgment from the UK’s Supreme Court. This doesn’t mean that they will be set in stone for all time, but it does mean that any interpretation of an EU-derived law will remain consistent after Brexit and that those decisions may – like any other Supreme Court decision – be departed from in the future by the Supreme Court “when it appears right to do so”.
What Does This Mean for Business?
It is fair to say that the EU has long been seen as a mixed blessing in the business world. Some see a large, attractive, and accessible market, not only in terms of potential customers, but also in terms of access to a broad and diverse labour market. For others, complaints about the regulatory burden and excessive red tape are commonplace. Even notable Remainer Nick Clegg has previously spoken of the need to reduce bureaucracy in the EU and to “end any unnecessarily meddling” where small businesses are concerned (see his 2014 comment in The Guardian here).
Excessive red tape or not, however, from a legislative point of view, it is clear that any predictions (or hopes) that such burdens would be reduced by Brexit are not to be. On reflection, such expectations were arguably highly unlikely to come to fruition in any case; any UK business wanting to trade within the EU would surely need to abide by broadly the same standards and rules as its EU counterparts, and now the Government has confirmed precisely that with its White Paper and its plans for The Great Repeal Bill.
The Great Repeal Bill White Paper is an important step in giving us a clearer picture of what post-Brexit life will look like, but until negotiations with the EU begin in earnest, at best this only represents one piece of a much larger puzzle. As ever, then, we want to hear from you. How do you feel that EU regulation has impacted your business, for better or for worse? Were you hoping to see a reduction in regulatory burdens as a result of Brexit and, if so, how do you feel now about The Great Repeal Bill? Was this the outcome you had hoped for, or would you have preferred to start from square one with new laws written from the ground up?
For now, there remain an almost infinite number of unanswered questions; but now that the Article 50 process has begun and we have a better idea of what will happen with our laws, perhaps the mists will begin to clear. As always, Simply-Docs will be keeping a close eye on developments to ensure that our templates and guidance are kept up-to-date, as well as providing news, views, hints, and tips right here on our blog!