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In reaction to the Repeal Bill, Peter Sellar, of Axiom Advocates, offers his thoughts on some of the key legal questions and emphasises the need for pragmatism in order to minimise the potential for future litigation and legal uncertainty.
The government has published the European Union (Withdrawal) Bill—commonly known as the Repeal Bill. The primary purpose of the Bill is to repeal the European Communities Act 1972 (ECA 1972), purportedly ending ‘the supremacy of EU law in the UK’. The Bill also seeks to adopt current EU law into UK law at the date of Brexit and create powers capable of making secondary legislation in order to prepare the UK statute book. Lawyers suggest the Bill creates both risks and opportunities, depending on the pragmatism of the government and the ensuing parliamentary scrutiny.
On the day the UK exits the EU, as currently intended, much of our current law which results from our membership of the EU is at risk of becoming unenforceable or invalid. The principal reason why that is the case is that the law’s validity depends on ECA 1972 and if the UK is to effect its exit from the EU, ECA 1972 must be repealed. It must do so because otherwise EU law will continue to be applicable in the UK after Brexit.
The aim of the European Union (Withdrawal) Bill (otherwise known as the Repeal Bill) is therefore to grandfather all existing EU law, which has become UK law, so that the law on the day before we exit the EU is the same as the law on the day we exit, and indeed the day after we exit.
The primary concern is to ensure legal certainty. If nothing were done, EU law would still apply despite the UK having taken a decision to exit the EU. If ECA 1972 were simply repealed, however, without converting UK law which
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Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.
Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.
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