The Repeal Bill - everything you need to know

The emergence of a hung Parliament after the General Election has posed questions on the ability to legislate on Brexit. Today’s Queen’s Speech has included provisions to introduce the previously announced Repeal Bill to be passed into law; however, its passage is not as certain as it once was. The Conservative Party will now govern with a very small majority if they manage to agree a ‘supply and confidence deal’ with the Democratic Unionist Party.

So what do you need to know about the new Bill?

The Bill needs to address the legislative challenge by Brexit

Broadly there are two categories of EU law:

  1. Directly applicable EU law (EU Regulations, EU Treaty provisions and EU decisions)

The UK Government doesn’t have to do anything to implement it – as soon as it is passed in the EU it becomes UK law

  1. Not directly applicable EU law (EU Directives)

As soon as the EU passes the law the UK Government has to implement the measures in one way or another (usually through secondary legislation)

The emergence of a hung Parliament after the General Election has posed questions on the ability to legislate on Brexit. Today’s Queen’s Speech has included provisions to introduce the previously announced Repeal Bill to be passed into law; however, its passage is not as certain as it once was. The Conservative Party will now govern with a very small majority if they manage to agree a ‘supply and confidence deal’ with the Democratic Unionist Party.

The European Communities Act 1972

The ECA makes EU law part of and supreme over UK law. It gives domestic effect to EU law via:

  • Section 2(1): This gives EU Treaties and ‘directly applicable’ EU law domestic effect without the need for national implementing measures
  • Section 2(2): This gives powers to implement EU Directives via delegated legislation

Measures taken by the UK Government to implement laws via number 2 and Section 2(2) above include 200 Acts of Parliament and 7,900 pieces of delegated legislation since 1973. This is the legislation that will need to be carried over and subsequently changed – this will have to be a significant undertaking from the Government and Parliament and will take up a substantial amount of time.

What will the Bill do?

In essence the Bill makes provision for the Government to take a snapshot of laws affecting the UK the day before the ECA ceases to have primacy in UK law and carry this over to the day after.

It will:

  1. Repeal the European Communities Act 1972, removing the applicability of EU law in the UK
  2. Convert the existing body of EU law into UK law
  3. Amend this body of law to ensure it “functions sensibly”

The Government’s intention is for the Bill to be as procedural, short and “boring” as possible. The more procedural the Bill is, the fewer amendments there will likely be. Notably the Queen’s Speech already attempted to dull down its content, by moving away from its previous name of the ‘Great Repeal Bill’ to simply the ‘Repeal Bill’. We should see a draft of the Bill within the next few days.

Instead of thousands of pieces of delegated legislation to replace existing legislation it will include a continuance clause that states “All directly applicable EU law is to have continuing effect in UK law”. Significantly it will also propose delegated powers for the Government to amend the secondary legislation (7,900 pieces of delegated legislation) as they require in order to “rectify problems”.

Minor and Major amendments

The Government has said it will seek powers through the Repeal Bill for secondary legislation to make the following technically ‘minor’ amendments to UK law:

  • References to “EU law”, “EU obligations”, “Ever closer union”
  • Involvement of an EU institution
  • Replacing an EU regulatory regime with a UK regime

There are though areas where EU laws cannot be simply copied over – where ‘major’ amendments will be necessary. The Repeal Bill does not cover such amendments. The Government has confirmed these “substantive policy choices” are to be dealt with separately in primary legislation, through the introduction of new Bills in the next two-year Parliamentary session. The Queen’s Speech has confirmed the exact Bills that the Government will introduce:

Immigration Bill

  • Allow the Government to end the EU’s rules on free movement of EU nationals in the UK and make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU, whilst still allowing the UK to attract the brightest and the best

Customs Bill

  • Provide new domestic legislation to replace EU customs legislation and modify elements of the indirect taxes system. This will allow the UK to operate standalone customs and indirect taxes regime on exit from the EU, whatever the outcome of the negotiations

Trade Bill  

  • To support the UK in making a smooth exit from the European Union and ensure that UK businesses are able to benefit from trade with the rest of the world

Nuclear Safeguards Bill  

  • Establish a UK nuclear safeguards regime as we leave the European Union and Euratom

International Sanctions Bill

  • Enable the UK to continue to impose, update and lift sanctions regimes both to comply with our international obligations and to pursue our foreign policy and national security objectives after the UK’s exit from the EU

Fisheries Bill

  • Enable the UK to control access to its waters and set UK fishing quotas once it has left the EU.

Agriculture Bill

  • Provide stability to farmers as we leave the EU.
  •  Support our farmers to compete domestically and on the global market, allowing us to grow more, sell more and export more great British food.

Given the fact that these Bills will also be followed with reams of secondary legislation, the Government will be unable to progress with a significant domestic agenda due to the parliamentary time this will take up. Along with this, the Government operating with such a small majority will also mean that much of the legislation will be subject to constant wrangling and amendments from backbenchers or opposition parties

In addition there will also be a post-Brexit review and decision on retaining, amending and removing preserved EU law. This, coupled with the primary legislation required for “substantive policy choices”, will not be covered by the Repeal Bill.

Delegated and Henry VIII powers

Delegated powers are requested by the Government in Bills before Parliament to action technical aspects of proposed measures through secondary legislation. They are requested in order to free Parliamentary time to discuss the policy framework for relevant Bills.

As such, Parliament, as it agrees to providing delegated powers where stipulated in certain Bills, cannot vote down the Government on secondary legislation.

Given the number of laws that will need to be reviewed and given ‘minor’ amendments, the Repeal Bill will effectively institute a programme of secondary legislation over the next two years.

Opportunities to engage

Repeal Bill – limited: the Government will stick to its narrative that the Bill is only intended to copy over existing laws so no substantial policy changes are required.

“Substantive policy choices” – extensive: as with any Government Bill amendments can be sought through the usual Parliamentary channels (e.g. bilateral briefings / Select Committees / Backbench MP pressure / Second Reading / Bill Committee)

Delegated legislation for additional measures – extensive: as with any secondary legislation there are opportunities to press the Government to remove measures before the House through discussions with the Lords Secondary Legislation Scrutiny Committee, Government departments’ policy advisers and Government departments’ legal teams.

Simon Richards, Account Director, Public Affairs