Stuart Chamberlain, author and employment law specialist, examines the Bill and its implications.
The Brexit process has begun. On 29 March 2017, Theresa May, the Prime Minister (PM), invoked Article 50 of the Treaty of Lisbon — the mechanism by which a Member State formally exits the European Union (EU) — serving notice to the European Council that the United Kingdom (UK) intended to leave the Union, including the single market. This begins a mandatory negotiation period of two years. Until the end of this negotiating period, the UK remains part of the EU and EU law will continue to apply.
The EU has produced its own draft guidelines on this “divorce”. Significantly, it rejects Mrs May’s idea that Brexit talks can take place at the same time as trade negotiations. The terms of Brexit will have to be settled first. The terms of these guidelines will be approved by EU leaders when they meet on 29 April 2017.
The day after the PM triggered Article 50, David Davis, the Secretary of State for Exiting the EU, introduced a White Paper, Legislating for the United Kingdom’s Withdrawal from the European Union. The White Paper sets out plans for the Great Repeal Bill — although this has yet to be published.
Then on 18 April 2017 a bombshell: Mrs May announced that she was seeking a general election on 8 June 2017. She claimed that opposition parties and an unelected House of Lords were jeopardising the Government’s preparations for Brexit. The House of Commons by a huge majority agreed to the date. Victory in this election would give her a clear mandate for her Brexit policy and ensure the smooth passage of proposed legislation — such as the Great Repeal Bill (GRB).
What is the Great Repeal Bill?
There is nothing particularly new in the White Paper; indeed, it is based on the 12 principles enunciated by Theresa May in January 2017.
The following key features of the GRB are outlined in the White Paper.
Repeal of the European Communities Act 1972, which provides for the supremacy of EU law over domestic law, and so return power to UK institutions, including an end to the jurisdiction of the European Court in Luxembourg.
Convert EU law into UK law at the moment of exit from the EU to prevent a legislative “black hole” after Brexit.
Create the necessary powers (known as “Henry VIII clauses” — see below) for secondary legislation to make “corrections to the transferred laws”.
The Government intends to pass the GRB through Parliament during the period of negotiation with the EU. The transferred body of law would be in place immediately after Brexit became effective.
The White Paper also confirmed the UK would be withdrawing from the EU’s Charter of Fundamental Rights, the EU’s Human Rights agreement and that it would not be converted into UK law. It remains committed to the Human Rights Act.
David Davis has emphasised that the GRB is a practical measure; it is not a vehicle for policy change or for establishing new legal frameworks. It will be up to the Parliament (and where appropriate, the devolved assemblies) to amend, repeal or improve any pieces of EU law (once it has been brought into domestic law) after the UK has left the EU.
How much EU law are we talking about?
Since the enactment of the European Communities Act, EU law has been a major part of the UK’s constitutional and legal framework.
The total body of European law, dating back to 1958, is known as the “Acquis Communautaire”. And there is a lot of it. As well as regulations, it includes EU treaties, directives and European Court of Justice rulings. The House of Commons library estimates that there are 19,000 pieces of EU-related legislation presently in force.
What has Henry VIII got to do with it?
Copying over EU law into UK law will not be enough. Not all necessary legislative change can be done through the GRB. Therefore, the Government will create delegated powers to enable ministers to “correct the statute book where necessary” so that it functions effectively after Brexit — but without the need for full Parliamentary scrutiny.
The Government estimates that 800–1000 of such measures (called statutory instruments) will be required to make sure the Bill functions properly.
These “corrections” to the statute book use what are known as “Henry VIII powers” — named after the Statute of Proclamations 1539, which gave the Tudor monarch the power to legislate by proclamation.
These clauses have been criticised as leading to arbitrary government and ill-considered legislative changes. David Davis has sought to reassure critics by declaring that the measures will be time-limited and only used for “technical” amendments.
What happens to the European Court of Justice and EU case law?
The European Court — or to give it its proper title, the Court of Justice of the European Union (CJEU) in Luxembourg — is the final arbiter on questions of the interpretation of European law.
The Government has consistently stated that Brexit will end the jurisdiction of the CJEU and this is repeated in the White Paper: the GRB will not provide any role for the CJEU in the interpretation of new law after Brexit and UK courts will no longer give primacy to EU law.
However, old rulings of the court will remain part of case law, with the same binding and precedent status as rulings from the UK’s highest court, the Supreme Court. The Government expects the Supreme Court to take a “sparing” approach to any departure from CJEU case law. It will mean that the CJEU and its case law could continue to remain relevant in deciding litigation on the post-Brexit legislation derived from EU law.
Enthusiastic Brexiteers will be disappointed that the CJEU rulings on holiday entitlement will be transposed into UK law. The White Paper argues that this is necessary to “avoid uncertainty for employers and employees”.
What will happen to employment law after Brexit?
The White Paper appears to guarantee, albeit in general terms, the protection of workers’ rights enjoyed under EU law after the UK has left the EU. It states that the Government is “committed to maintaining the UK’s status as a global leader on workers’ rights and will make sure legal protection for workers keeps pace with the changing labour market”. Further detail may emerge from the Conservative Party’s manifesto for the June general election.
There will be some legislation introduced after Brexit, notably a separate Immigration Bill. Until that time nothing will change for EU citizens living and working in the UK without Parliament’s consent. After its exit from the EU, the Government may then seek to amend or repeal particular legislation — such as the unpopular Agency Workers Regulations or parts of TUPE.
Wholesale changes to discrimination law, however, seem unlikely. And it is worth pointing out that many employment rights, such as unfair dismissal and the national minimum wage, come from domestic, not EU law. The 5.6 weeks’ paid holiday enjoyed in the UK is derived from domestic law — the EU law only provides four weeks’ paid holiday.
In the end, workers’ rights will depend on the future shape and nature of the UK’s economy after Brexit. The Government has stressed that legal protection for workers will need to keep pace with a changing labour market.
What happens next?
The original plan was for the GRB to be included in the next Queen’s Speech (expected in May 2017) and will then have to pass through both Houses of Parliament. It would be passed ahead of the UK’s exit from the EU but to become law only when the UK actually leaves. Much will now depend on the lead up to and the outcome of the June 2017 general election.
Under the formal timetable for negotiations following the triggering of Article 50, the UK is due to leave the EU in March 2019 — unless both sides agree to an extension.
Until the UK actually leaves, EU law will continue to apply.
A significant victory for Mrs May in the June general election would provide her with a mandate for her policy of a “clean” Brexit and would do much to neutralise any future problems with the more exuberant Brexiteers in her own party. In any case, the June general election in the UK is unlikely to slow down the Brexit process: negotiations with the EU are not likely to hot up until after the French and German general elections in April/May and September 2017 respectively. Victory in June would strengthen Mrs May’s bargaining position. Indeed, Jean-Claude Juncker, President of the European Commission has confirmed “real talks” between the EU and UK can only begin after the June general election.
The GRB is likely to be “one of the largest legislative projects ever undertaken in the UK”. The Government says that having the legislation in place will ensure a “calm and orderly exit”. Then will begin the long-term process of the Government, and Parliament, choosing what it wants to do with the laws it has incorporated from the EU.
Reports indicate, however, that the EU is not going merely to roll over and let the UK get just what it wants. The EU will likely demand that the UK remain subject to the European Court after Brexit. This would fly in the face of the PM’s pledge to bring an end to the jurisdiction of the court in Britain — and thus be contrary to the terms of the GRB. Mrs May is expected to highlight this pledge in the conservative manifesto. Negotiations with the EU on this issue are likely to prove difficult.
Croner-i will keep subscribers informed of Brexit developments on a regular basis and of its implications for HR and employment law.
Last reviewed 27 April 2017