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The Great Repeal Bill: making Brexit work for business

By Mike McKeon

We are indebted to Louisa Knox at our legal friends Shepperd and Wedderburn (S&W) for enlightening us on the legal issues around Brexit at a recent ICAS Brexit Advisory Meeting.

This is a complex area and to do justice to this subject, I would encourage you to read S&W’s excellent summary on CA Today.

A clear goal of the UK Government on “Brexit day” (currently, 29 March 2019) is legal certainty: contracts have to work; citizen protections must be enforceable; data needs to be protected; and trade relations have to have an effective legal basis.

This is all to be achieved by the Great Repeal Bill. It has three steps:

  • repeal of the European Communities Act 1972 (yes, it goes back that far);
  • “conversion” of a wide range of EU law and regulations into UK law (suggested at almost 21,000 in number); and
  • ensuring that new EU derived UK law operates effectively post Brexit.

Best laid plans…

There are, however, warnings of “black holes” in future UK legislation where current EU legislation is based on, or refers to, either an EU Directive or Agency which will not be relevant post Brexit. A replacement legal basis/agency may be required to make any new laws effective.

Case law from the ECJ (European Court of Justice), which today forms part of the UK’s legal framework, will need to be addressed. The UK is likely to find it difficult to replace the many hundreds of ECJ judgements that have refined and defined soon-to-be-transferred EU law.

The powers and role of the ECJ is a totemic issue for many supporters of Brexit and so a delicate balance between replacing the ECJ judgements and accepting the reality that much of what has already been determined may have to continue in force, will need to be struck.

And if the role of the ECJ and its historic judgements are not enough of a political “blue touch paper” then how this work is to be achieved – through special government powers and statutory instrument – is another.

The sheer volume of work dictates that extra powers and regulations will be necessary. It is, therefore, no surprise that the UK Prime Minister is looking for a more secure majority in Parliament. This is not for the faint hearted nor for those with a thin majority.

Power struggles

And what happens when powers are “repatriated” from the EU to the UK? What parts of the powers are passed to the devolved administrations of Scotland, Wales and Northern Ireland?

This will, no doubt, be of interest to politicians of all persuasions and jurisdictions but it should also be of interest to businesses and citizens; the risks of creating internal barriers to trade and people movements across the UK regions are very real.

This article was originally published in the 12 June 2017 issue of CA Today.