To much fanfare, but a dearth of detail, Theresa May announced on 2 October that the Government will introduce a ‘Great Repeal Bill’ in the next Queen’s Speech.
The Bill is intended to remove the European Communities Act (ECA) 1972 from the statute book following completion of the Brexit negotiations. Once enacted, the intention is that the Bill will simply incorporate all current applicable EU law into domestic UK legislation, which can then be retained, amended or repealed as appropriate at the Government’s leisure. In one fell swoop, on the UK’s exist from the EU (Brexit A Bluffer's Guide to Brexit Models), the UK will remove the primacy of EU law and the jurisdiction of the Court of Justice of the European Union over UK national laws post-Brexit.
Whilst plainly preferable to the legal void that would ensue if the ECA were simply repealed and EU Regulations ceased to apply with no transitional arrangements, there a number of issues will need to be addressed. For example, many EU laws make references to EU agencies and institutions setting standards or performing functions in relation to EU law in a way that is plainly inconsistent with the stated desire to remove the primacy of EU law.
One such example is the EU Merger Regulation (EUMR) which provides that transactions meeting the relevant jurisdictional threshold are subject to mandatory prior notification to the European Commission. As a Regulation, the EUMR has direct effect in the UK with no requirement for implementing UK legislation. Simply incorporating the EUMR into UK domestic legislation as appears to be the intention of the Great Repeal Bill gives rise to a whole host of inconsistencies and difficulties. Whatever the UK legislation might say, the UK will simply no longer be a Member State and as a result UK turnover will not, as a matter of EU law, count towards the relevant EU turnover thresholds.
First, it seems difficult to believe that having removed itself from the primacy of EU law and its institutions, the UK would voluntarily submit to the authority of the European Commission. Second, and perhaps most importantly, absent transitional arrangements, there is no basis for the European Commission to consider the effects on third countries outside the EEA. Finally, transactions which currently meet the EUMR thresholds by virtue of UK turnover, may no longer qualify for review in Brussels, meaning that the European Commission will not have jurisdiction under its own rules, whatever the effect of the Great Repeal Bill.
Another example is the EU General Data Protection Regulation (GDPR) which comes into force in 2018. Assuming the UK is still a member of the EU at the date this comes into force (which now seems likely), this Regulation will have direct effect with no need for implementing UK legislation. It will also fall under the corpus of existing EU law that we understand the Great Repeal Bill is designed to incorporate into UK domestic legislation. Failure to implement the GDPR would result in a significant gap in data privacy law, as the UK’s current Data Protection Act will itself have been superseded by the GDPR by the time of Brexit. However, in common with EUMR, at the core of the GDPR is a European institution, in this case the creation of the European Data Protection Board (EDPB) which is responsible for consistent application of the GDPR across the EU. Again, it would seem odd for the UK to submit its data protection regime to oversight of an EU body, whilst there can be no certainty that the EDPB would continue to have jurisdiction over the UK post-Brexit, absent specific transitional arrangements, whatever the general principle of the Great Repeal Bill.
As can be seen from the above two isolated examples, the Great Repeal Bill will not be a panacea to solve all the legal issues of Brexit absent additional and specific transitional arrangements.