Q: What’s so Great about this Repeal Bill?
A: The Great Repeal Bill, announced by the government in early October, would get rid of the European Communities Act 1972. “It was this Act that put EU law above UK law”, as the Brexit Secretary put it.
To be more precise, the 1972 law makes EU laws a part of the UK legal system—so you can rely on them in court, for example. It also means that where there’s a clash between an EU law and a UK law, the former wins out. We’ve covered this in more detail here.
Q: So announcing a law to repeal the 1972 Act is big news?
A: Not really. It’s more of a “tidying-up exercise”, as Professor Mark Elliott of Cambridge puts it.
He argues that it’s not even legally necessary, because the European Communities Act covers EU requirements “arising by or under the [EU’s] Treaties”—and we won’t be signed up to those Treaties any more once we leave.
But for practical and symbolic reasons, a law like this was always going to be passed as part of the Brexit process.
All the government has said is that this law will be “included in the next Queen’s Speech” and introduced in the “next Parliamentary session”. In other words, MPs will start to discuss it after May or June 2017, which is before we’ve actually left the EU.
Q: How come we can pass a law about leaving the EU before we’ve actually done it?
A: The plan is for Parliament to pass it in advance. But it won’t actually come into force until the date we formally leave. So the law will be in a sort of suspended animation until then.
That’s “not so unusual”, according to Professor Sionaidh Douglas-Scott, who points out that if the Bill came into force while the UK was still an EU member, we would be breaking international law.
Q: So the announcement was just about timing?
A: Not quite. The government has also confirmed that “the Great Repeal Act will convert existing EU law into domestic law, wherever practical”.
That’s necessary because if you just repealed the European Communities Act without doing anything else, lots of EU rules would cease to exist in UK law. They only have the force of law in this country because of the 1972 Act.
So the idea is to preserve existing rules that come from the EU so that there’s no great change on the day we leave. EU laws can be unpicked later on.
Q: It’s that easy?
A: We’ll see. The Brexit Secretary, David Davis, has previously said that “it does not quite work like that”.
This may be because some of the rules we want to keep give powers to the European Commission or an EU agency, for example. Keeping them word for word might not be desirable in a world where we’ve left the EU, even in the short term.
The lawyer Ciarán McGonagle uses the example of a UK law on licences for the use of different plant varieties, which in turn references an EU regulation. It gives powers to an EU Community Plant Variety Office, but when we leave, we would probably want those functions to go a UK version. That would require the relevant UK law to be amended.
Q: Fine. But once they work out the complexity, we’ll have a Great Repeal Act on the books within a couple of years?
A: It’s very unlikely to be called that officially. The name recalls the Great Reform Act that expanded democracy in the 19th century, but that was actually called the Representation of the People Act 1832.
There are rules on what official name a law can be given. So while politicians may keep referring to a Great Repeal Bill, look out for something with a considerably less snappy title—the European Communities (Repeal) Bill 2017, say.