Do not turn Brexit law into Pandora’s Box, ministers told

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Jun 27, 2017
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References to EU laws should be changed to EU law at the date of exit, according to a report co-published by Linklaters

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Ministers must not overcomplicate the first round of Brexit legislation and should steer clear of using controversial “Henry VIII” powers, argues one of London’s leading law firms.

The report, which was co-published by Linklaters, one of the Square Mile “magic circle” group of five elite law firms, urges the government not to use the proposed repeal bill to make policy changes that “could risk turning it into a legislative Pandora’s Box”. The lawyers insist that the bill should focus on the task of “separating UK law from EU law and repealing the European Communities Act 1972 to ensure a continuing stable legal framework upon Brexit”.

A simple approach to adopting and adapting EU and EU-derived law “would largely remove the need to make extensive line-by-line amendments to the law”, says the report. The report outlines principles that the authors argue would “help to save huge amounts of time, resources and cost for both UK government and City businesses”. 

The report, which was published in conjunction with the International Regulatory Strategy Group, sets out five rules of statutory interpretation for EU and EU-derived law. The first four suggested rules stipulate that references to EU law become references to EU law as at exit date, references to EU member states become references to EU member states and the UK, implicit extraterritorial effects of EU law are disregarded, and functions of European institutions become functions of UK institutions.

The last suggested rule says that obligations to interact with the EU become powers to do so, that restrictions on national measures are disregarded, and dependence on prior EU acts for taking national action are disregarded.

“The Great Repeal Bill is an unprecedented task involving the translation of over 12,000 EU regulations into UK law and the adaptation of 7,900 statutory instruments plus primary legislation,” said Charles Clark, a Linklaters partner. “The difficulties are compounded by the limited time frame in which to deliver it.”

Clark continued: “The right approach is a principles-based one and we have outlined a clear and simple way to get it done. These proposals are not a panacea but do allow Government to create a straightforward and transparent process for its own departments and businesses across Britain to follow as the UK leaves the EU.”

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