The global law firm, Linklaters has launched a report produced in conjunction with the International Regulatory Strategy Group, a practitioner-led body comprising leading UK-based figures from the financial and professional services industry, co-sponsored by The City UK and the City of London Corporation.
The report: The Great Repeal Bill: Domesticating EU Law seeks to address the issues raised in the United Kingdom government’s recent White Paper on the “Great Repeal Bill” (see my earlier post: The process for the Great Repeal Bill starts…).
The report proposes a simple and efficient approach to the adoption and adaptation of EU and EU-derived law, saving UK businesses and government time, money and resources with a key recommendation for setting continuity, certainty, timeliness, simplicity and consistency as the overarching objective for the Great Repeal Bill & for the establishment of a statutory advisory body, under parliamentary supervision, able to give guidance on issues of construction and application if ambiguities arise.
The proposed process is supported through eight guiding principles to be followed in the adaptation and interpretation of the domesticated law.
The basis for the EU acquis and implementing legislation will continue to apply, as UK law, as they stand at the exit date with relevant domestic policy changes and exclusions.
UK law rights and obligations will continue on exit day
(subject to policy change or exclusion) together with the EU acquis and implementing legislation will come with its history.
The territorial scope of the domesticated acquis
will generally be limited to the UK with the UK courts to take a purposive approach to interpreting the acquis, implementing legislation and the Great Repeal Bill.
Finally, the UK Government will provide guidance and consultations.
Supporting the eight Principles are Five Rules for the statutory Interpretation for EU and EU-derived law which it is suggested deal with most of the corrections needed without using ‘Henry VIII’ powers that the UK Government have had problems with in the case of R(Gina Miller and others) v The Secretary of State for Exiting the European Union
References in any UK or EU legislation and regulation to other EU legislation, law or acts after the exit date shall be to the relevant legislation, law or act under the authority of Parliament or relevant devolved assembly.
Although the UK will have left the EU, EU legislation and UK implementing legislation and rules shall be construed as if the UK were a Member State and only apply within the UK.
The functions of any EU institution or agency as at the exit date, be construed as being functions of the relevant Minister or department in accordance with a matrix allocating responsibilities.
Finally, the obligations of the UK and UK institutions will be subject to the following sub-rules:
- Obligations to co-operate become powers
- Restrictions on national measures are disapplied
- No dependence on prior acts.
Whilst I do not have formal legal training, I have worked with the development of EU legislation and in supporting countries adopting EU legislation, such as Poland and Hungary & neighbouring countries, such as Ukraine. The proposals appear to hold merit for wider consideration, discussion and adoption even if the phrase “The devil is in the detail” may arise more than once over the exit process.
If you are interested to keep up-to-date on this developing issue, you should download a copy of the report from the Linklaters’ website here