THE day after Brexit was triggered formally, the British government published details of the Repeal Bill, which is an essential step for the United Kingdom on the road to leaving the European Union. What the Repeal Bill, officially known as the EU (Withdrawal) Bill, states is that European law will no longer apply in UK. Apart from the Repeal Bill, new bills on trade and customs will be introduced. This will put in place an independent trade policy that will help British businesses export to markets around the world.
The Repeal Bill will repeal the 1972 European Communities Act which was enacted to facilitate Britain’s passage into the EU. This was the legislation that removed UK’s parliamentary sovereignty as with the 1972 Act, European law took precedence over laws passed in the UK Parliament. The Repeal Bill will also affect another major judicial organ, the European Court of Justice (ECJ), whose jurisdiction will be effectively ended. Ministers have clarified that once the UK leaves the EU, judgments of the ECJ will have the same status as the UK Supreme Court decisions, which can be overturned by subsequent rulings. Currently, the ECJ is the highest court of the European Union in matters of EU law, but not national law. National courts of final appeal from the UK may refer questions of law to the ECJ.
What is proposed to ensure a smooth transition is to copy all EU legislation into domestic UK law to avoid disruption to business and individual citizens as UK leaves the EU. Ensuring that the laws of the EU are embodied into UK laws during the transition period will also help in trade negotiations with the EU in the meantime. However, transposing EU laws into UK laws is not easy. There is no real figure for EU laws, but one type of EU law is believed to be having approximately 12,000 EU regulations in force! The UK Parliament has passed 7,900 statutory instruments implementing EU legislation and 186 Acts, which incorporate a degree of EU influence. The total body of European law, dating back to 1958 is perceived to number about 80,000 items covering workers’ rights, trade and environment.
While talks are going on, new legislation will be made. They will affect UK until the final day that UK leaves the EU. But, this is where UK will need to come up with certain directives to combat this unending battle. From the time of negotiations, perhaps new directives should be drawn up to keep new legislation from both sides of the divide in abeyance pending the final day.
To use UK law as it stands too cannot work. The copious provisions in the UK laws are intertwined with EU provisions. Each legislation and individual provision will have to be studied to ensure how they will work after Brexit, yet, they cannot be as they were before 1972 as the whole position has been changed since UK’s entry into the EU. Major swathes of the statute book will need to be scrutinised and examined before any changes are proposed. Only then can the next step be achieved, which is for the UK Parliament to amend, repeal and improve the existing laws to achieve the objectives of a smooth exit. The Great Repeal Bill is inadequate to address these vicissitudes.
The proposal by the government is to go back to history to the manner in which amended legislation was brought in by Henry VIII. The Statute of Proclamations 1539 gave the king the power to enact corrections to the statute book and thereby enact amended legislation by proclamation. This method worked in the 16th century. Can it work in the 21st century? Such a method will not involve Parliament. The opposition claims that this is a sweeping method by the government to hastily implement ill thought-out legislation. Cabinet ministers tried to allay the fears by assuring parliamentarians that the proposed mechanism was a temporary measure whereby a conservative number of about 800 to 1,000 statutory instruments will be used to ensure that the Great Repeal Bill functions properly.
The bill is now in Parliament. The timing is important. Although the bill may be passed at any time, it will only become law when UK officially leaves the EU and that will be at the end of March 2019, unless both parties request an extension. So what awaits us? Until UK leaves, EU law will continue to apply. The day after, the European Union (Withdrawal) Act comes into force. Having the legislation in place will ensure a smooth exit. But to ensure a smooth exit, what provisions are inserted into the European Union (Withdrawal) Act needs careful thinking, ordering and tremendous foresight to ensure that no dark abysses await.
The writer is Research Fellow, Faculty of Law, University of Malaya