Brexit: what the Government (whoever forms it) needs to do now

9 June 2017

The dissolution of Parliament and subsequent election campaign put on ice the legal steps that will have to be taken in order to make progress in achieving Brexit. Give that both the Conservatives and Labour were committed to Brexit, whatever the make-up of the next Government attention needs to re-focus on what needs to be done through legislation in order to make Brexit possible in practice.

A very early priority will need to be the introduction to Parliament of what the Conservatives had called the Great Repeal Bill, or something very like it. In March this year the previous administration produced a White Paper  “Legislating for the United Kingdom’s withdrawal from the European Union”. This explained that a key part of the plan for Brexit was to introduce a Bill that would “wherever practical and appropriate, convert EU law into UK law from the day we leave”.  It is generally accepted that this will be needed in order to avoid a complete legal meltdown at the point that the UK leaves the EU.

Although the White Paper revealed some of the then Government’s thinking about what a Great Repeal Bill would contain, a number of critical legal issues were left unclear. One of the most important is the extent to which Ministers will be given powers to use secondary legislation as a vehicle through which to convert EU law into UK law. Whilst a Great Repeal Bill itself will convert swathes EU law, there will be a substantial amount that will need another mechanism – secondary legislation. In the White Paper, the need for this was said to arise in order to ‘rectify problems occurring as a consequence of leaving the EU’ and an example given is of environmental legislation which provides for an opinion of the European Commission to obtained before offshore gas and oil projects can proceed. When that legislation is domesticated, it will have to be altered either to replace the opinion of the European Commission with that of a UK body or to remove the requirement altogether.

On the face of it, this may seem like a purely mechanical tidying up exercise; but, there were indications in the White Paper that what was contemplated is something much broader, under which Ministers would be able to use secondary legislation to make substantial changes to the law. This is significant on two levels. First, secondary legislation receives very limited Parliamentary scrutiny now – and the anticipated volume of Brexit related secondary legislation means that in future it is likely to receive even less. So there could be, in practice, a loss Parliamentary control over the Government’s actions. Second, secondary legislation can be challenged in the Courts, by judicial review, much more easily than primary legislation; and, there is unlikely to be a shortage of companies and people who might want to challenge new secondary legislation if it impacts on them. In that context the precise wording in a Great Repeal Bill of the power to make secondary legislation will be hugely important. One ground of challenging secondary legislation is if it falls outside the scope of the power in the primary legislation that authorises it to be made. That may lead the new Government down the path of creating a broad power – but that risks creating a situation where there is both no Parliamentary control and no control by the Courts. Many think that would be an unhappy outcome and one can anticipate much creative legal thought being devoted to ways of avoiding that.

A second hugely important issue, which will have to be addressed in a Great Repeal Bill,  and where the position is wholly uncertain, is what will be done in relation to the division of powers between the UK Parliament and the devolved administrations in Scotland, Wales and Northern Ireland. Many areas where the EU is currently active – for example agriculture and transport – are also areas where the devolved administrations have competence. In the White Paper a confused position was set out, with on the one hand it being said that it was anticipated that the outcome of the process was likely to lead to a “significant increase in the decision making power of each devolved administration”  and on the other a warning shot being fired as to the need to safeguard “the harmonious functioning of the UK’s own single market”, with the implication that in relation to some areas of devolved administration competence powers coming back from the EU kept in London. Over and above the political challenges that this will bring, there is currently no real clue as to the legal means through which it will be achieved.

At the moment, it seems more likely than not that the next administration will be a Conservative minority Government supported by the DUP. Although it might be foolhardy to make any political predictions now, if that is the outcome then the likelihood is that the Government will find it difficult to persuade Parliament to vote for a broad power to make secondary legislation and the DUP may extract a price for its support in respect of any attempt to ‘interfere’ with the current competences of the devolved administrations.

Further information

Other lawyers from Kingsley Napley are regularly blogging about the impact of Brexit, so follow our Brexit blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact Adam Chapman or a member of our Public Law team.

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