Less than 12 months to Brexit: are you ready? - The UK Repeal Act

Summary of a presentation given by Charles Bankes and James Rhys, Clerk to Exiting the EU Commons Committee at an event held at CityPoint on 19 April 2018.
  • Submitted 26 April 2018
  • Applicable Law UK
  • Topic Brexit

The first session featured James Rhys, Clerk to the Exiting the EU Commons Committee, joined by Charles Bankes, head of the European Competition and Regulatory group at Simmons & Simmons, who discussed the ongoing UK repeal legislative process. The key points included:

  1. The publication in late March of a draft Withdrawal Agreement between the Commission and the UK showing a substantial amount of “green-agreed” text gave stakeholders some measure of comfort that some form of withdrawal agreement is likely. However, the history of the EU and its treaty-making processes gives rise to the possibility that a final agreement may emerge later in the process than expected. All parties are aware that “nothing is agreed until everything is agreed”. The firm timetable set out in Article 50 means that, if there is a problem with the agreement late in the process, the chances of a hard exit increase significantly.

  2. The flagship domestic bill, the European Union (Withdrawal) Bill, is currently in the House of Lords and the Government is faced with solving thorny topics such as: limiting the use of Henry VIII powers; clarifying the position of “EU retained law” within the domestic jurisprudential context; solving the issue of the Irish border and Customs Union; and reaching agreement with the devolved administrations on responsibility for some of the legislative competences being brought back to the UK.

  3. Other Brexit related bills have also been progressing through in the legislative machinery; however some - such as the Trade bill - have been delayed by the Government. It is also anticipated that further bills will be required, such as a Withdrawal Agreement and Implementation Bill to give effect to the Withdrawal Agreement. This will address issues such as the proposed transitional period and clarify the status of other EU bodies following exit-day - in particular the role and relevance of the Court of Justice of the European Union - and possibly reinstate parts of the repealed European Communities Act (eg Section 2(2)) to establish some legal continuity for the duration of the transition.

  4. The courts remain very worried that current legislative drafting will leave to them with the arduous and thankless task of untangling the interpretation of many vague provisions in the withdrawal legislation. To maintain the famed high degree of legal certainty from which our legal system benefits, it can be anticipated that such tasks will invite, and sometimes necessitate, high degrees of judicial activism. Whatever the approach the courts take, we can expect a severe rise in the number of judicial review application in the decade following exit.

  5. Notwithstanding the degree of uncertainty surrounding the finer details of the domestic legislation, the general direction seems to have settled at a “macro-legal” level: the UK is working to transpose the acquis communautaire into UK law at the point of exit and this will largely continue to apply during the “stand-still” transition. Thereafter, the UK will be free to amend this body of law as it sees fit and in accordance with its final relationship with the EU. Therefore, as the legal and legislative haze dissipates and reveals what stands beyond the Brexit horizon, it will become easier to advise clients on the impact it will have on their business.

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