The most important piece of UK legislation that needs to be repealed is the European Communities Act 1972 (ECA), which provides for the supremacy of EU law. Repealing the ECA will bring an end to the constitutional relationship that exists between EU and UK law. Moreover, the vast amounts of secondary legislation that have been passed with the objective and justification of implementing EU law would have to be considered by the Government.
Parliament has legislated to repeal the ECA with the European Union (Withdrawal) Act 2018, which will convert all existing EU-derived law into domestic law. The Government’s approach will allow the UK to decide over time what laws it wishes to retain and is intended to avoid the significant gaps and consequent uncertainty if all EU-derived law was repealed without replacement.
Commercially, even if the UK decided not to retain any EU law, companies looking to trade in the EU would nevertheless still be required to comply with EU laws such as EU competition rules, regulations and standards.
The UK will need to address EU provisions which regulate the relationship between EU Member States themselves or are based on reciprocity. Thought will also need to be given to the issues surrounding:
- legislation which relies on an EU Regulator or give jurisdiction to the CJEU;
- the numerous treaties which have been signed by the EU and are currently directly applicable in the UK by virtue of s2(1) of the European Communities Act; and
- the fact that references in EU laws to actions being taken within the EU will not cover actions taken within the UK.
The EU (Withdrawal) Act contains wide-ranging powers to amend EU-derived law by secondary legislation. In the Government’s view, these powers will give sufficient scope to correct or remove laws that would otherwise not function properly after Brexit, although the Government has sought to stress that the powers will not be able to be used to create ‘new policy’. For further details, please see our blog post.