` BRIEFING PAPER Number 7867, 16 January 2017 Legislating for Brexit: Statutory By Vaughne Miller Instruments implementing EU law Contents: 1. Introduction 2. EU law in the UK 3. Appendix List of SIs www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Legislating for Brexit: Statutory Instruments implementing EU law Contents Summary 4 1. Introduction 6 2. EU law in the UK 7 2.1 How are SIs to implement EU laws adopted? 7 2.1 Do the devolved Administrations adopt EU law? 8 2.2 Where can I find EU-related SIs? 8 3. Appendix List of SIs 9 3 Commons Library Briefing, 16 January 2017 Contributing Authors: Sasha Gorb Cover page image copyright EU flag, British flag and Palace of Westminster – CC0 Public domain: no attribution required. All images cropped. 4 Legislating for Brexit: Statutory Instruments implementing EU law Summary According to data on the EU’s Eur-Lex database, there are at present around 19,000 EU legislative acts in force. These are mainly directives, regulations, decisions and external agreements, but they include a range of other instruments. As Commons Briefing Paper Legislating for Brexit: the Great Repeal Bill, CBP7793, 21 November 2016, explains, a major issue for Brexit is what to do about EU legislation that has been incorporated into UK law. Section 2(2) of the European Communities Act 1972 (ECA) provides a power for subordinate legislation to be made where the EU Treaties require Member States to make provisions in their domestic law, such as for the implementation of EU directives. It also provides that other powers to adopt subordinate legislation in other Acts are interpreted as enabling them to be used to implement EU law. Most EU directives and a small number of EU regulations and decisions are implemented in the UK by SI under the authority of the ECA - the majority - or another enabling Act. Some EU directives are implemented by primary legislation (Act of Parliament). These will be examined in a separate briefing paper. Repealing the ECA will have the effect of rendering the law as if the repealed Act had never existed, which would mean that secondary legislation made under the ECA (but not under other enabling Acts) would no longer be legally valid on Brexit day. Although the aim of the Government’s proposed Great Repeal Bill is to legislate to leave the EU, for practical reasons and to avoid legal gaps, the Government has said the Bill will “convert” EU law into UK law where it is practical. The Government and Parliament will then decide whether to repeal, amend or keep them. It is not yet clear what role Parliament will have in such a process. The ECA applies to the whole of the UK and to different degrees in Gibraltar and the Crown Dependencies. Under the Devolution Statutes the devolved authorities may observe, transpose and implement EU law, and are obliged not to legislate or act in a way that is contrary to EU law. Brexit means they too will need to address the matter of EU- derived laws. Briefing Paper 7863, Legislating for Brexit: directly applicable EU law, 12 January 2017, looks at EU regulations, which will cease to have effect in the UK if the ECA is simply repealed without a saving provision, pending decisions on their future status. Briefing Paper 7850, Legislating for Brexit: EU external agreements, 5 January 2017, looks at the EU’s external agreements, stating whether they are exclusive EU competence or mixed competence agreements. 5 Commons Library Briefing, 16 January 2017 6 Legislating for Brexit: Statutory Instruments implementing EU law 1. Introduction According to the EU’s Eur-Lex database, there are at present around 19,000 EU legislative acts in force. These are mainly directives, regulations, decisions and external agreements, but they include other instruments, such as resolutions, reports, rules of procedure, guidelines, declarations, inter-institutional and internal agreements, programmes, opinions, communications, conclusions and statutes. Section 2(1) ECA: all rights, powers, Many of these instruments, mainly EU directives, are implemented in the liabilities, obligations UK by delegated legislation.1 The Appendix to this paper lists around and restrictions “from 7,900 Statutory Instruments which have implemented EU legislation. time to time created or arising by or under The European Communities Act 1972 (ECA) gives effect to the UK's the Treaties” have obligations and duties under the EC/EU Treaties in national law. It legal effect in the UK. “defines the legal relationship between the two otherwise separate spheres of law, and without it EU law could not become part of national law”.2 The ECA gives Ministers broad powers to make subordinate legislation to give effect to legal rights and obligations arising from EU membership. Under section 2(2) ECA Ministers can by secondary Section 2(2) ECA: legislation do “anything that could be done by an Act of Parliament”,3 power for subordinate but without going through the full parliamentary legislative process. legislation to be made Directly applicable EU Treaty obligations and EU regulations enter into where EU Treaties require Member force in the UK by virtue of the ECA without needing further States to make implementation. EU directives on the other hand are mostly provisions in domestic implemented by secondary legislation (Statutory Instruments) and law, e.g. for sometimes by primary legislation (Acts of Parliament). implementation of directives; other The Government intends to introduce a “Great Repeal Bill” in the next powers to adopt Queen’s Speech, which, if passed, will repeal the ECA and make subordinate provision for the EU acquis – the body of existing EU law and legislation in other obligations - to be “converted” into UK law “wherever practical”.4 The Acts are interpreted as enabling them to Government (and Parliament?) will then decide which EU acts to keep, be used to implement repeal or modify, depending on the UK’s new relationship with the EU. EU obligations. It is not yet clear what role Parliament will have in this process. The distinction between directly applicable EU law and EU law that has been implemented by primary or secondary legislation will have implications for the process of legislating for Brexit. 1 “Delegated or secondary legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of delegated legislation but it can also include Rules or Codes of Practice”, UK Parliament website, delegated legislation. 2 “The UK's legal relationship with the EU”, The EU Bill and Parliamentary Sovereignty, European Scrutiny Committee, Tenth Report, The EU Bill and Parliamentary Sovereignty, 24 December 2010. 3 Daniel Greenberg, Derby University Wilmot Lecture 2012, Derby University School of Law and Criminology, 4 Theresa May, speech to Conservative Party conference on 2 October 2016; David Davis, Secretary of State for Exiting the EU, 10 October 2016. 7 Commons Library Briefing, 16 January 2017 2. EU law in the UK Most EU directives and a small number of EU regulations and decisions are implemented in the UK by Statutory Instrument (SI) under Section 2(2) of the ECA. Some EU measures are implemented by Acts of Parliament and some by administrative regulations. A few don’t need any implementation because they are already covered by existing UK measures. 2.1 How are SIs to implement EU laws adopted? The ECA does not specify whether EU-related SIs should be adopted under the negative or the affirmative procedure.5 This means that regulations under section 2(2) ECA can be combined with regulations made under powers in other enabling Acts. The latter may provide for either negative or affirmative procedure and the ECA allows section 2(2) SIs to be made using the procedure which applies under the other Act. The vast majority of EU-related SIs (estimated at 90%)6 are laid subject to the negative procedure. This means they automatically become law without debate unless there is an objection from either House. A few are laid subject to affirmative procedure, which requires the formal approval of both Houses of Parliament before they become law. For example, the Community Drivers Hours and Recording Equipment (Amendment) Regulations 1998, which implemented EU rules on the use of tachographs, was laid subject to the affirmative procedure. SIs to implement subsequent amendments to the EU rules in 2007, 2008, 2015 and 2016 were also subject to affirmative procedure. The Government’s Transposition Notes (TNs) show how the main elements of an EU directive have been, or will be, transposed into UK law. A TN should set out in table form how each article of a directive has been transposed into domestic law.7 TNs are published on departmental websites, usually in accordance with the general guidance.8 5 See section 5.2 Parliamentary control of delegated powers, Commons Briefing Paper 7793, Legislating for Brexit: the Great Repeal Bill, 21 November 2016, for further information. 6 See Making Parliament fit for purpose, Greg Rosen, 2014. 7 See, for example, the table for the transposition of Directive 2006/25/EC on the minimum health and safety requirements regarding the exposure of workers to risks arising from physical agents (artificial optical radiation), the by the Control of Artificial Optical Radiation at Work Regulations 2010, on the Health and Safety Executive website. 8 For Government guidance, see Transposition Guidance: How to implement European Directives effectively, April 2013. 8 Legislating for Brexit: Statutory Instruments implementing EU law 2.1 Do the devolved Administrations adopt EU law? The ECA applies to the whole of the UK. EU regulations become law directly in all four UK nations (and in the Crown Dependencies and Gibraltar to the extent that the Treaties apply).