The Great Repeal Act – and how this may affect the travel industry

On 23 June 2016, the UK voted to leave the European Union. A year ago, that prospect for many of us seemed a remote, almost surreal one with unfathomable consequences. Now, in April 2017, Article 50 has been triggered and we must contemplate the mechanics of unravelling a 44 year relationship.

As an initial step in the legal divorce process, the Government has published a White Paper; Legislating for the United Kingdom’s withdrawal from the European Union. This sets out the structure and objectives of the legislation which will give effect to the Referendum vote and which is to be known as the Great Repeal Act once in effect.

The scale of the task faced by the Government purely in terms of giving existing EU legislation effect in the UK post Brexit is immense. There are currently in excess of 19,000 separate pieces of EU law in force including 12,000 EU regulations which have direct effect and 7,900 statutory instruments implementing EU laws including directives. A material proportion of UK Acts additionally incorporate at least a degree of EU influence.

The European Communities Act 1972 will be repealed when the UK leaves the European Union. Doing so removes parts of the UK’s legal framework and creates a vacuum which must be filled. The Great Repeal Act is intended to do so on the basis, in principle at least, that the same rules and laws should apply immediately after we leave the EU as before. As presented in the White Paper, this may be seen as effectively an administrative exercise. The Government is keen to stress that the Act will not be used to make major policy changes and will do no more than is required to ensure that the law continues to function from the outset.

The Great Repeal Act is intended to achieve the following objectives from the date Brexit takes effect;

1. All directly applicable EU law will be converted into UK law. This will include EU Regulations such 261/2004 on denied boarding.
2. Existing UK laws which implement the UK’s obligations to comply with EU law will be preserved. The statutory instrument which should by Brexit have given effect to the 2015 Directive on Package Travel will come within this category.
3. Pre-existing decisions of the Court of Justice will be given the same binding or precedent status as those of the Supreme Court. Any question as to the meaning of EU derived law will thereafter be determined by the UK courts by reference to that historic case law but will not take account of any subsequent ECJ decisions.

The EU law which is to be incorporated into UK law was of course intended to apply while the UK was a member of the EU. Whilst a certain amount of this law can operate on a standalone basis, much more of it will be incapable of functioning effectively or at all without amendment. The power to make the necessary corrections so as to enable incorporated EU law to remain workable will also be provided by the Great Repeal Act. It is intended that these corrections will be effected by statutory instrument and that this legislation will be in place the day before the UK leaves the EU. The extent of this power is likely to be controversial and subject to a good deal of further debate.

The White Paper is of course only the starting point for the legal Brexit process. Its purpose is to set out the Government’s legislative strategy for Brexit and in particular to outline the intended mechanics for converting EU law into UK law. The actual Great Repeal Bill and the other legislation which the White Paper promises, including an immigration bill, will follow.

In addition, whilst dealing with existing EU legislation is of course a very significant element of the exit process, it is only a part of the jigsaw and cannot be viewed in isolation. The UK Government is now embarking on negotiations for a trade deal which, if achieved, will also require implementation into UK law. Any deal is likely to involve appropriate compliance with at least certain areas of EU law. The cut off point between the pre-Brexit EU law applies regime and the post-Brexit UK generated laws only era envisaged by the White Paper may not therefore be as clear and straight forward as the White Paper would have us believe.

EU law is an integral part of the trading environment for UK travel businesses. Much of that law will require amendment under the Great Repeal Act. How easy it will be to achieve useable legislation for a global travel industry through this process remains to be seen.

For further advice please contact Claire Ingleby at mb LAW, e-mail claire.ingleby@mb-law.co.uk.

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.