The (Great) Repeal Bill Lives On

The Government's intended approach of converting EU law into UK domestic law is confirmed and consistent with the March White Paper: see our note, Deciphering the Great Repeal Bill (although the title "Great" has been dropped from the Repeal Bill).

The Repeal Bill will provide for continuity by default in UK domestic law as far as possible.  It seems likely that it will do this by general provision rather than item by item but will be subject to (i) powers to make changes by secondary legislation not requiring a fully statutory procedure in Parliament (controversial so-called "Henry VIII" powers); and (ii) other, issue-specific Bills.

These enabling or framework Bills may well also confer powers on Ministers to develop the detail as secondary legislation.  Parliament is likely to be more vociferous than ever in demanding scrutiny of substantial policy changes, a demand that will no doubt rub up against the increasing urgency of legislation as Brexit approaches.

Reserving the position

The Queen's Speech promises specific legislation on a number of issues arising from Brexit.  These include immigration, nuclear energy (outside Euratom), privacy, agriculture and fisheries.  This is far from a comprehensive list of the areas in which new national policy is likely to be needed in the next two years.  That list will be a moving target as the negotiations develop. 

The details we have of those issue-specific bills so far suggest that even in these areas the Bills will, initially at least, create an enabling framework rather than prescribe a specific outcome.  This approach suggests the Government wishes to leave its options open. This provides no indication as to whether the Government yet has a clear preferred position on the outcome of the Brexit process, or indeed the process itself; see our note A Practical Roadmap. It does provide flexibility for the UK to reflect the sort of Brexit that emerges from negotiations.   

Specific issues

Particular examples of this approach include:

• The Customs and Trade Bills is described in a manner which emphasises the centrality to the Government's Brexit plans of leaving the EU Customs Union and Common Commercial Policy – but it does not appear to preclude an EU/UK agreement in these areas.

• The plans for the Immigration Bill are described as "allowing for" the repeal of EU law on immigration, including free movement, that would otherwise be incorporated into UK law by the Repeal Bill.  This perhaps deliberately raises the prospect that any such changes could come some time after Brexit or that changes might not go so far as full scale repeal being limited to specific changes.

• The announcement of a new Data Protection Bill is also a significant indicator of the Government's post-Brexit approach on an important issue for business, which is said to enable 70% of all trade in services.  The new law will implement the EU General Data Protection Regulation ('GDPR') and the new Directive which applies to law enforcement data processing.  This will allow the UK to meet its obligations while it remains an EU Member State.  But, crucially, the Government has signalled that this approach will also help put the UK in the best position to maintain its ability to share data with other EU Member States and internationally after Brexit.  See our blog by Eduardo Ustaran.