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newsAlternatives to the Repeal Bill or the European Union (Withdrawal) Bill

One of the major difficulties with implementing Brexit is dealing with the legal implications. As previously stated in the article “The legal implications of Brexit” repeal of the European Communities Act 1972 results in all EU Regulations (approximately 18000) and Decisions ceasing to apply to the UK overnight. Directives may or may not remain as part of the UK legal system, depending on whether they were implemented through primary legislation or secondary legislation. In total, there are approximately 45000 legal instruments that need to be repatriated and which will cease to apply in the UK once the European Communities Act is repealed, including the case law of the ECJ.  This is equivalent to throwing a hand grenade into the UK legal system and therefore in order to avoid legal and economic chaos the government will need to repatriate all of the EU acquis back into UK law in order to maintain the legal framework that is currently operating. This is the background to the European Union (Withdrawal) Bill, commonly known as the Repeal Bill.

The Repeal Bill has been widely criticised as a naked power grab by the executive, but even more importantly it is unlikely to achieve the governments aim of repatriating all EU law in one go. The end result is likely to be a legal fudge, with major inconsistencies that are likely to take decades to resolve. Legal certainty is a prerequisite for trade, as businesses operate in a legal framework. So, if you end up with major inconsistencies in your legal framework or an unclear system of rights and obligations, then businesses suffer as they don’t know what rules to apply, and neither do their employees and consumers. The end result is legal chaos and a crippled economy, both of which must be avoided. The risks really couldn’t be higher; if the government do not get this right the country will be crippled for years, until everything is sorted out.

The government are selling the Repeal Bill as the "only way" they can repatriate all the law that they need to. In fact, there are other options available.
 
When a country is joining the EU, they have to align their national law in line with EU law, prior to them becoming an official member state. There are 35 chapters of the acquis, or the body of EU law.  Every six months there is a progress report, and if the country joining the EU has aligned all their national law in line with EU law in relation to a chapter, then that chapter is signed off. When all chapters have been signed off, then the country is ready to join the EU, provided the other criteria are met.
 
Now, Brexit is effectively a reversal of this process, and there is no reason why the same procedure could not be used in reverse ie the government would pass all of the legislation relating to  (for example) EU environmental law back onto the UK Statute book. Until they had done so, and that chapter had been signed off, EU law would carry on applying. As soon as that chapter was complete, the EU would amend EU law to reflect the fact that that section of EU law no longer applied to the UK, and UK law would pick up from that point onwards.  The risk of a legal cliff edge would therefore be avoided, and also it would mean the legislative amendments would take place once the terms of the Withdrawal Agreement were clear.  Once every chapter had gone through that process, and EU law no longer applied at all then the European Communities Act would be repealed,  and the UK would cease to be a member of the EU.
 
The EU have already proposed a joint UK-EU committee to deal with any governance issues. According to their position paper on governance, The Withdrawal Agreement should establish a Joint Committee,  in which the Union and the United Kingdom are represented. The Joint Committee should have the following tasks and competences:
 
(1)Ensure the good functioning of the Agreement.
(2)Adopt all measures necessary to deal with unforeseen situations not covered in the Withdrawal Agreement under the conditions set out in the Withdrawal Agreement.
(3)Decide on the incorporation of future amendments to Union law in the Withdrawal Agreement where such incorporation is provided for in the Withdrawal Agreement.
(4)Discuss divergences of views between the parties as set out in the Withdrawal Agreement.
(5)Perform any other task conferred on it by the Withdrawal Agreement.
 
Point 3 would appear to provide the scope for a joint UK-EU Committee managing the legal implications of Brexit. The reality of the legal situation is that the process of uncoupling UK law from EU law will need to be a jointly managed process in any event, as EU law will need to be amended to reflect the fact that the UK will no longer be a Member. Therefore, it makes sense for the UK government to manage this process jointly with the European Commission.
 
The accession procedure offers a well known and well established framework for resolving the legal implications of Brexit. It will take longer, but the time it takes will depend on how quickly the UK repatriates EU law. Directives which had been implemented into UK law via statutory instrument could be repatriated by creating a new parent Act, from which the authority for their continuing application would flow. Regulations (approximately 18000 of them) could then pass through either the normal parliamentary system or a variation thereof, with appropriate scrutiny mechanisms. The need for the widespread and widely criticised Henry VIII powers currently part of the Repeal Bill would be avoided. With the Repeal Bill the government are effectively asking Parliament to pass a Bill which will erode our system of Parliamentary Sovereignty, our constitution and democratic checks and balances because they are not prepared to take the time to repatriate this law properly. The government will no doubt argue that they are required to repatriate all this legislation before the end of March 2019 as a result of the wording of Article 50.
 
However, according to the EP Research Service,
 
"Under Article 50(3) TEU, the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols thereto in  the state concerned from that point on. EU  law ceases to apply in the state concerned, although  any national acts adopted in implementation or transposition of EU law would remain valid until the national authorities decide to amend or repeal them.
 
A withdrawal agreement would need to address the phasing-out of EU financial programmes and other EU norms.
 
Experts agree that, in order to replace EU law,  specifically in any field of exclusive EU competence,  the withdrawing state would need to enact substantial new legislation and that, in any case, a complete isolation of the withdrawing state from the effects of the EU acquis would be impossible if there were to be a future relationship between the former Member State and the EU."
 
This suggests that at EU level there is a practical realisation that if the EU wants an ongoing relationship with the UK (which it does) them implementing the Withdrawal agreement will take time, and a transitional application of EU law is both necessary and desirable. The push to try and get everything done within the two years set by Article 50 is coming purely from the UK, and it unlikely to be achievable.  General legal consensus, particularly among EU lawyers, is that the Repeal Bill will not have the effect of repatriating EU law smoothly into the UK legal system.  There is a very high risk that if the Repeal Bill is enacted, the UK legal system will collapse into chaos and if that happens the economy and potentially society would also be severely affected, as businesses operate in a legal framework. Without that framework and regulatory equivalence, businesses would struggle to trade. A staggered withdrawal offers the most legal certainty and a smooth transition, unlike the approach taken in the European Union (Withdrawal) Bill. So, one option for Parliament, when they start to debate this Bill in September has to be to scrap the Repeal Bill, and come up with an alternative mechanism for managing the legal implications of Brexit. The Repeal Bill approach is not the only option.