What seems to be a central part of the basic strategy of the Government on Brexit – it seems – is reliance on the Great Repeal Bill. The idea is to adopt wholesale EU legislation, re-enact it as UK law and then to use it to regulate sectors currently under EU control, until such time as it is possible to review the law and bring out uniquely UK policies.
As Mrs May said
, when we repeal the European Communities Act, we will convert the "acquis
" – the body of existing EU law – into British law. This will give the country maximum certainty as we leave the EU. The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.
This is very nice in theory but Ministers are somewhat handicapped by their constant insistence that they don't do detail, with them refusing to look inside the regulations that they propose to use, asking whether or not they can be made to function when they are transplanted onto the UK statute book.
Obviously, with some regulations, there will be no problems. For example, we have Commission Regulation (EU) No 1129/2011
, "amending Annex II to Regulation (EC) No 1333/2008 of the European Parliament and of the Council by establishing a Union list of food additives". This is a straightforward technical regulation and as long as we keep it in force, our trade with the EU will not be interrupted by virtue of disparities in rules on food additives.
On the other hand, there are the more complex laws that cover policy issues related to economic activity, and include the regulation and coordination of the actions of Member States and the Commission – plus other EU bodies. These might be considerably harder to integrate into UK law without, at the very least, substantial amendment.
One such example might be Regulation 1380/2013
which sets out the current parameters for the Common Fisheries Policy. If Ministers think they can simply re-enact this at a UK level, they may be rather disappointed.
In the first instance, they will find that the regulation applies to "Union waters", meaning "waters under the sovereignty or jurisdiction of the Member States" - with certain minor exceptions. That, in itself cannot be allowable, so this and the 22 other references to "union waters" would have to be removed, and selectively replaced with the term "UK waters", which would then have to be defined.
Equally, since the Regulation would now apply to the UK, all 209 references to the term "Member State" in singular and plural form would have to be removed. However, simple substitution would not be enough. Looking, say, at Article 13, we see it is headed: "Member State emergency measures".
This tells us that, in the event of a serious threat to the conservation of marine biological resources in its own waters, a Member State may adopt emergency measures to alleviate the threat. But, it goes on to say:
Where emergency measures to be adopted by a Member State are liable to affect fishing vessels of other Member States, such measures shall be adopted only after consulting the Commission, the relevant Member States and the relevant Advisory Councils on a draft of the measures accompanied by an explanatory memorandum. The consulting Member State may set a reasonable deadline for the consultation which shall, however, not be shorter than one month.
Here there are several problems. Firstly, we could hardly have a situation, post-Brexit, where the UK would have to consult the Commission before taking action, nor other Member States, and nor would it consult any "Advisory Councils", which are very much an EU creation. There would have to be substantial modification to this Article.
We get an even more serious problem with Article 16, which requires that:
Fishing opportunities allocated to Member States shall ensure relative stability of fishing activities of each Member State for each fish stock or fishery. The interests of each Member State shall be taken into account when new fishing opportunities are allocated.
This is an issue specific to the CFP and very much inimical to UK interests. The entire Article would have to be removed, and following Articles renumbered.
Going back a bit to the earlier reference to "Advisory Council", we find that there are 45 such references, all of which would have to be removed – with adjustments to the associated text, such as in Article 14. Here, in order to avoid and minimise unwanted catches, Member States "may conduct pilot projects, based on the best available scientific advice and taking into account the opinions of the relevant Advisory Councils". Obviously, the latter part of the sentence would have to be removed.
Then, one assumes that this Article might be addressed to devolved government, so it would be pointless just replacing the words "Member State" with the UK. One might address it to the devolved authorities, in which case these have to be defined within the context of the Regulation as whole, requiring further amendment.
Moving on to Article 18, this deals with regionalisation, we see that Member States may work together to submit to the Commission joint recommendations on conservation, in respect of specific geographical areas, which can then be adopted by the Commission as part of its multiannual plan.
It would seem that this whole Article must go, but that begs the question as to what to do with the other 111 references to the Commission, much of which allocated to it powers or responsibilities. One would assume that these references must go, and the associated text tidied up.
The complexity of this problem is illustrated by Article 22 which requires Member States shall send to the Commission, by 31 May each year, a report on the balance between the fishing capacity of their fleets and their fishing opportunities. Then, "to facilitate a common approach across the Union", the report has to be "prepared in accordance with common guidelines which may be developed by the Commission indicating the relevant technical, social and economic parameters".
One would expect this Article to be removed in its entirety, except that, as respects devolved governments and the fleets regulated by them, the Secretary of State might require his own information, in which case there would have to be a substantial modification.
As regards Article 24, Member States are required to record the information on ownership, on vessel and gear characteristics and on the activity of Union fishing vessels flying their flag that is necessary for the management of measures established under the Regulation. They must then submit that information to the Commission which in turn has to maintain a Union fishing fleet register containing the information received.
Clearly, this Article cannot just be removed as the UK Government will need to keep its own register of UK fishing vessels. This, the Article will have to be re-written to require (or authorise) the Secretary of State to maintain a register, it must set out the information needed, and it must then require fishing vessel owners to provide that information.
Another problematic area comes with Article 27 which requires Member States to carry out fisheries and aquaculture research and innovation programmes, coordinated with other Member States and in close cooperation with the Commission – all in the context of the Union research and innovation frameworks, involving, where appropriate, the relevant Advisory Councils.
This Article would probably have to go, except that there would need to be a replacement, to permit devolved authorities (and the Secretary of State if needed) to carry out research.
Then, there is another problem to confront, this one in the use of the word "Union", meaning European Union. We see this in Article 36, which requires that "compliance with the CFP rules shall be ensured through an effective Union fisheries control system". Clearly, this cannot be allowed as part of a UK policy, so it would appear that the whole Article would have to be removed.
However, within the body of the Regulation there are 192 references to the "Union", almost certainly requiring removal and the associated text. Specifically, for instance, it would be unacceptable to require UK law to be "coherent with the Union environmental legislation".
That then brings us to Article 37, which requires an expert group on compliance to be established by the Commission to assess, facilitate and strengthen the implementation of, and compliance with, the obligations under the Union fisheries control system. This has to be composed of representatives of the Commission and the Member States and the European Parliament is allowed to send experts to attend meetings.
There are, in fact, 31 separate mentions of the European Parliament, and another 30 referring to the Council (of Ministers), many in relation to additional legislation, which may or may not apply. These references will have to be reviewed, and most removed.
From there, the overall point emerges that, in order to make this Regulation fit for purpose, hundreds of amendments will be required. It would not be possible simply to re-enact them without change. Then, to make it fully functional, there will have to be many focused additions to take account of our specific systems and the responsibilities of devolved government.
Furthermore, it is a highly dynamic document. From its original 40 pages in 2013, the consolidated version has grown to 66 pages, intensifying the load. This, however, is not the least of it. Under the fisheries heading in the acquis, there are 1,413 pieces of legislation, including 1,122 Regulations. Most are routine management instruments with no relevance to the UK, so the first requirement would be to screen for relevance.
The sort of Regulation that is vital to the functioning of the CFP is the eight-page Regulation (EC) No 1921/2006 on the submission of statistical data on landings of fishery products in Member States. The collection of such data will be just as important to the UK system but no purpose would be served by re-enacting this legislation.
It requires each EU Member State to submit annually to the Commission "statistical data in respect of the fishery products landed on its territory by Community and EFTA fishing vessels". These data are then processed by the EU's Standing Committee for Agricultural Statistics, established by Article 1 of Council Decision 72/279/EEC.
Instead, we will need dedicated rules setting up our own statistical system to perform a function which has for many decades been performed by Community institutions.
Another illustration is Commission Delegated Regulation (EU) 2016/2250 establishing a discard plan for certain demersal fisheries in the North Sea and in Union waters of ICES Division IIa. This again is centred around Member States having a direct management interest in the North Sea submitting data to the Commission in order to make the system work, thus requiring considerable modification before it could function as UK policy.
The upshot is that the assessments, analysis and modifications, plus the necessary additions, are so onerous that the Government might be better off starting from scratch. And this is a problem right across the board, covering the CAP and many other policy domains.
Repatriation might have worked in the context of the Efta-EEA option. In that event, the entire Single Market acquis would be adopted through the EEA Agreement. The substantive policies could then be managed through amendments to the EEA Agreement, leaving only selected instruments to be adopted through direct repatriation and transposition.
As a broad-ranging strategy, though, relying on the Great Repeal Bill does not look secure. Effectively, the UK is having to adopt thousands of instruments, all of which will have to be reviewed and many amended. This is not an easy option. The more we look at it, the more it begins to look as if it is not an option at all.