Earlier this week there was much debate about how much the bill would be for the UK leaving the EU and whether Britain would pay up. The Foreign Secretary said the EU could 'go whistle' if they expect the UK to pay a penny. The Brexit Secretary almost dismissed this with a statement that UK policy was simply "not to pay more than we need to”. Today there was a different type of Brexit Bill. The Government published its Repeal Bill - the draft Act of Parliament for leaving the EU.
What does this mean for any organisation trying to plan for Brexit?
What is the Repeal Bill?
As I have blogged before, the Repeal Bill (or, as it is now called, 'The European Union (Withdrawal) Bill') achieves four main things:
- leaving the EU: it repeals the European Communities Act of 1972 that put our membership of the EU into UK law.
- legal continuity for business, consumers and employees: carrying over EU law into UK domestic legislation. Apart from a few exceptions, all existing EU law on the day we leave the EU becomes UK law ("retained EU law").
- it carries over existing case law from the European Court of Justice (ECJ). Legal cases already submitted to the ECJ before the 'exit day' will continue to be heard by the ECJ but no new cases can be submitted even if they relate to activities occurring before exit day.
- it allows Ministers to introduce regulations to deal with "deficiencies in retained EU law" - notably where EU law includes a role for EU enforcement bodies or agencies or provides for reciprocal arrangements between the UK and EU which is no longer appropriate. This will, for example, allow for the UK to establish alternatives to existing EU arrangements for enforcement of environmental legislation or regulation of medicines.
What does it mean for me?
For business and other organisations, the provisions to ensure legal certainty and continuity provide much needed stability and enable planning around an existing legal framework. You can assume that in areas such as employment law, safety standards, accounting standards and consumer rights, there will be no change in the rules.
What organisations will want to know are what the 'deficiencies' are that will be replaced through UK regulations. Where you currently work with an EU body that designs, implements or enforces EU rules, you may expect a change and you may want to start thinking about what type of body should take on these functions (if at all) in the future. Across all sectors, organisations will want to know more about what 'reciprocal arrangements' with the EU may be regarded as 'deficiencies'. This could include arrangements to end or replace mutual recognition of technical standards or professional qualifications between the UK and EU member states. Most of these will depend upon negotiation of our future trading relationship with the EU - so may not become apparent for a year or more.
What will happen to the Repeal Bill in Parliament - and how does that affect me?
The oppositions parties including (Labour, SNP, and Liberal Democrats) will give the Bill a tough ride and seek to amend it. The areas they are focusing on include:
- seeking commitments to devolve powers from the EU to the devolved administrations in Scotland, Wales and Northern Ireland. It is worth noting that devolution to local government and to City mayors has not been mentioned so much. This may be something that some organisations will want to express a view on, one way or another. Ministers say this needs to be looked at on case-by-case basis (which makes sense in theory); their opponents say they want more concrete guarantees than this and that so far the conduct of Brexit negotiations has not built trust with the devolved administrations.
- curbing the ability of ministers to make regulations (with less Parliamentary scrutiny) in areas of 'deficiencies'. This may cut both ways for business and other organisations: the ability of Minsters to make regulations quickly, and provide certainty sooner may be welcome; on the other hand, less parliamentary scrutiny also means less opportunity for stakeholders to shape the proposals and ensure they work.
- specifying the enforcement mechanisms that will be introduced in areas such as environmental protection. And legally writing into the Bill the pledges the government has made to maintain employment and consumer protections. Such an approach may provide organisations with greater certainty. In terms of greater detail on enforcement regimes, the difficulty for government will be that proposals require full consultation and that will take time.
Government will face increasing pressure from the business community to start listing the potential 'areas of deficiency' where additional regulations may be needed and to bring forward proposals for consultation on those areas where they need to replace EU bodies. My discussions with government officials suggest that are hoping to manage this in bundles - issuing consultations on a number of issues wrapped together. This may make it more manageable but the risk is we have to wait longer and have less time to respond. Government also needs to remember that although they are focused almost exclusively on Brexit, businesses and other organisations have other priorities too. Using innovative ways of consulting stakeholders will be crucial. Encouragingly, rapid channels of communication are being established between government and trade bodies.
the repeal bill will repeal the 1972 European Communities Act, which took Britain into the EU and meant that European law took precedence over laws passed in the UK Parliament. It will also end the jurisdiction of the European Court of Justice.All existing EU legislation will be copied across into domestic UK law to ensure a smooth transition on the day after Brexit.