The Repeal Bill must not become a legislative Pandora’s Box

New proposals from the IRSG will save UK businesses and government time, money and resources. Proposed guiding principles and rules of statutory interpretation would ensure continuity of law and reduce risk.

A new report from the International Regulatory Strategy Group (IRSG) in collaboration with Linklaters, urges government not to use the Repeal Bill to make policy changes which could risk turning it into a legislative Pandora’s Box. Instead it should focus attention on the task of separating UK law from EU law and repealing the European Communities Act 1972 to ensure a continuing stable legal framework upon Brexit.

The report, ‘The Great Repeal Bill: Domesticating EU Law’, recommends government adopts a simple, principles-based approach to adopting and adapting EU and EU-derived law. Such an approach would largely remove the need to make extensive line-by-line amendments to the law.

The report outlines eight guiding principles designed to ensure continuity and certainty of law and reduce the risk of unintended consequences. They would also help to save huge amounts of time, resources and cost for both UK government and City businesses.

Mark Hoban, Chair of the IRSG, and former Treasury Minister, said,

Domesticating EU law is widely recognised as the biggest legislative challenge the UK has ever faced. Given the complexity and scale of the task, the Repeal Bill should only be used to provide stability and continuity for business and its customers. Policy changes should be in separate legislation and be subject to proper consultation and planning.

The UK is the leading international centre for financial and related professional services – and a world-leading legal services hub. This position rests firmly on maintaining a robust regulatory regime and legal certainty. Ensuring that businesses operating in the UK are subject to the same obligations and procedures the day after Brexit as the day before is essential to maintain the UK’s leading position.

Charles Clark, Partner Consultant, Linklaters, said,

The Great Repeal Bill is an unprecedented task involving the translation of over 12,000 EU regulations into UK law and the adaptation of 7,900 statutory instruments plus primary legislation. The difficulties are compounded by the limited time frame in which to deliver it. However, we believe the right approach is a principles-based one and we have outlined a clear and simple way to get it done.

These proposals are not a panacea but do allow Government to create a straightforward and transparent process for its own departments and businesses across Britain to follow as the UK leaves the EU.

The report also sets out five rules of statutory interpretation for EU and EU-derived law which would deal with most of the corrections that would otherwise need to be made. These rules would also largely remove the need to use controversial ‘Henry VIII’ powers to change legislation with little parliamentary oversight.

In addition the report also proposes an independently chaired statutory body which would have the power to address any unforeseen issues, gaps or ambiguities quickly and without the need for a dispute. This group would be subject to parliamentary supervision and could make recommendations for further legislation if the issue cannot be satisfactorily resolved.

The 8 Guiding Principles are:
1. The acquis and implementing legislation will continue to apply, as UK law, as they stand at the exit date
2. Policy changes will be dealt with separately from domestication
3. Exclusions from the scope of domestication will be made expressly
4. UK law rights and obligations to continue on exit day (subject to policy change or exclusion)
5. The acquis and implementing legislation will come with its history
6. The territorial scope of the domesticated acquis will generally be limited to the UK
7. UK courts will take a purposive approach to interpreting the acquis, implementing legislation and the Great Repeal Bill
8. Government will provide guidance and consult

The 5 Rules of Statutory Interpretation (in summary):
1. References to EU law become references to EU law as at exit date
2. References to EU Member States become references to EU Member States and the UK
3. Implicit extraterritorial effects of EU law are disregarded
4. Functions of European institutions (for example, the European Commission and ESMA) become functions of UK institutions
5. Obligations of the UK and UK institutions
     A. Obligations to interact with the EU become powers to do so
     B. Restrictions on national measures are disregarded
     C. Dependence on prior EU acts for taking national action are disregarded