The Government has stated its intention to introduce a Great Repeal Act that will “convert existing EU law into domestic law, while allowing Parliament to amend, repeal or improve any law after appropriate scrutiny and debate”. This means that, immediately on Brexit, the Great Repeal Act will:
(a) repeal the 1972 European Communities Act resulting in EU law ceasing to apply in the UK directly; and
(b) simultaneously transpose much of EU law into UK law.
The Government will then, over time, have to make policy decisions about which EU-derived laws to repeal and which to retain. It is expected, for example, that rules on free movement of workers would be among the first to be repealed.
Wholesale transposition will not be possible in some areas, meaning that choices will have to be made pre-Brexit. For example, where a particular EU law relies on continued membership of the EU or provides for regulation at EU-level, the legislation will need to be changed as it is transposed into UK law in order to operate effectively. It will be necessary to work out pre-Brexit how to adapt such laws so they will work practically, for example by establishing new UK regulatory bodies to replicate the work previously done at EU level. In addition, the Government's intention to transpose all EU law into domestic law appears to apply only to EU legislation (Regulations and Directives). However, EU law does not only comprise EU legislation. The Government will need to decide an approach in relation to:
(a) decisions of the Council or Commission, which have direct effect in the UK if addressed to the UK;
(b) certain general principles of EU law such as proportionality which also have direct effect in the UK; and
(c) CJEU judgments, which currently create binding precedents for the UK courts in relation to interpretation of all the EU law that the Great Repeal Act will transpose.