1. Replicating and Repairing EU law: Mechanics of the Great Repeal Bill
Tom Pascoe
Brick Court Chambers
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2. Two objectives Replicating EU law “so far as possible”
Repairing EU law where necessary.
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3. I. Replicating EU law Basic mechanics:
Clause 2 – “EU-derived domestic legislation”.
Clause 3 – “Direct EU legislation” (including EU regulations).
Clause 4 –Any “rights, powers, liabilities, obligations, restrictions, remedies and procedures which are recognised and available on Brexit day”.
Clauses 4 and 5(5) – General principles of EU law. BUT …
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4. I. Replicating EU law Exceptions
… No right to bring a cause of action for breaching general principles of EU law (Schedule 1, paragraph 3).
No retention of EU Charter (clause 5(4)).
No right to bring a claim for Francovich damages (Schedule 1, paragraph 4).
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5. II. Repairing EU law
Clause 7 gives Minister power to “make any provision that could be made by an Act of Parliament” to prevent, remedy or mitigate—
 any failure of retained EU law to operate effectively, or
(b)  any other deficiency in retained EU law,
arising from the withdrawal of the United Kingdom from the EU.
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6. II. Repairing EU law Two obstacles to “repairing” EU law:
Involvement of EU institutions.
Reciprocity.
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7. II. Repairing EU law Reciprocity
(2) Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law …
(c) makes provision for, or in connection with, reciprocal arrangements between—
(i)  the United Kingdom or any part of it or a public authority in the United Kingdom, and
(ii)  the EU, an EU entity, a member State or a public authority in a 20 member State …
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8. II. Repairing EU law
EU institutions (e.g. EMA, European Chemicals Agency)
(2) Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law …
(b)  confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it …
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9. II. Repairing EU law … very broad! What else?
(2) Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law …
(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties.
… very broad!
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10. II. Repairing EU law Supervision by Parliament – Schedule 7
Regulations subject to negative resolution procedure (para 1(3)).
Certain types of regulations must be approved by positive resolutions of House of Commons and House of Lords, including:
Establishing new public authorities; and
Transferring functions from EU bodies to UK bodies (para 1(2)).
But the list does not include abolishing existing rules and functions.
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11. II. Repairing EU law Consequences for public lawyers – judicial review
Minister wants to repeal the Working Time Regulations Can he or she do so under clause 7?
Power to remedy:
“Any retained EU law which … makes provision for, or in connection with, any reciprocal or other arrangements … which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties”
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12. II. Repairing EU law
Explanatory notes para 110: “The law is not deficient merely because a minister considers that EU law was flawed prior to exit.”
But what if Minister considers the Regulations were appropriate before exit but deficient now that UK is not part of the single labour market?
What does it mean that the deficiency must arise “as a result of the UK ceasing to be a party to any UK Treaties?”
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13. II. Repairing EU law Improper purpose?
Courts look for the “dominant purpose” e.g. R (Hicks) v Metropolitan Police Commissioner [2012] EWHC 1947.
Is the purpose of clause 7 only to allow “technical” repairs?
Or are political purposes allowed?
Irrationality?
Light touch review of very broad statutory powers?
Relevance of parliamentary supervision: Nottinghamshire CC v SS Environment [1986] AC 240 (only “bad faith, improper motive or manifest absurdity”).
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14. II. Repairing EU law
But see R (Public Law Project) v Lord Chancellor [2016] UKSC 39 per Lord Neuberger at [25]:
“When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.”
… So watch this space!
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15. Thank you www.brickcourt.co.uk Tom Pascoe brickcourt.co.uk
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