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U.K.’s Brexit Bill Opens a Legal Can of Worms: Quicktake Q&A

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When Prime Minister Theresa May unveiled her Great Repeal Bill on Oct. 2, she presented it as an “historic” assertion of sovereignty as the U.K. prepares to leave the European Union. She also raised as many questions as she answered.

1. What will the bill do?

It will repeal the European Communities Act of 1972, which gives effect and priority to EU law in the U.K. and was passed when Britain joined the EU’s precursor organizations.

2. When will May introduce the bill?

May said she’ll include the Great Repeal Bill in the Queen’s Speech next spring. That comes after her March 31 deadline for starting talks on withdrawal from the EU.

3. What does the European Communities Act do?

It allows EU regulations and parts of the bloc’s treaties that are directly applicable in all member states automatically to become U.K. law. The EU uses binding regulations, such as the common rules on imported goods, to enforce uniformity across the single market. The ECA also covers measures in EU law that don’t have automatic effect in member states, including directives. One such directive of crucial importance to U.K.-based financial firms is the EU market-rules overhaul known as MiFID II. The ECA makes it possible for these to enter into force in the U.K. through secondary legislation -- orders and rules issued by government departments and ministers, as opposed to acts of Parliament.

4. Won’t repealing the ECA leave holes in the statute book?

Under May’s plan, two things happen on exit day: EU law ceases to apply in the U.K., thanks to the Great Repeal Bill, and simultaneously the "body of existing EU law” will be converted into British law. This will prevent huge gaps from suddenly appearing in U.K. law and promote continuity, which companies trying to plan their post-Brexit future will no doubt appreciate. “The government has, sensibly and inevitably, concluded that the vast body of EU law cannot simply be made to vanish overnight,” Mark Elliott, a law professor at the University of Cambridge, wrote in a blog post. “The chaos that would ensue if it did would be profound.”

5. Will the conversion be straightforward?

No. Untangling British and EU law after more than 40 years together won’t be simple. EU law is strewn with references to institutions such as the European Commission, the EU’s executive arm, that won’t have jurisdiction over the U.K. after Brexit.

6. So the U.K. will be stuck with EU laws?

Not entirely. After secession, Parliament “will be free, subject to international agreements and treaties with other countries and the EU on matters such as trade, to amend, repeal and improve any law it chooses,” May said. Yet the bill will also include “powers for ministers to make some changes by secondary legislation, giving the government the flexibility to take account of the negotiations with the EU as they proceed,” according to the government.

7. Will that be controversial?

Provisions for the government to repeal or amend primary law using subordinate legislation are known as Henry VIII clauses for the Statute of Proclamations of 1539, which gave King Henry VIII power to legislate by proclamation. Using such clauses to amend converted EU law could become a thorny issue. “The use of Henry VIII clauses to repeal EU law is particularly repugnant,” Sionaidh Douglas-Scott, a law professor at Queen Mary University of London, wrote in an article on the U.K. Constitutional Law Association website. “EU law has created vast networks of rights and obligations, whose subject matter -- e.g. social policy, discrimination law, or fundamental rights -- covers many matters central to individual liberty, and their repeal or amendment, even by means of primary legislation, would be highly controversial.”

8. Could it get any more complicated?

Yes, because May will also have to contend with Scotland, where a healthy majority voted to remain in the EU. While pledging to "consult and work with the devolved administrations for Scotland, Wales and Northern Ireland," May warned that there’s “no opt-out from Brexit” and that she won’t allow “divisive nationalists” to tear the U.K. apart.  Two weeks later, Scotland’s first minister, Nicola Sturgeon, offered her strongest signal yet that she’ll call a vote on independence if she doesn’t like the Brexit terms that May negotiates.

9. How could Scotland affect the legislative process?

Some areas of EU law cover powers that have been devolved to Scotland. If the conversion of EU into U.K. law covers these areas, Parliament would be expected to seek Edinburgh’s approval. The Scotland Act 2016 states that the U.K. Parliament “will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

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