Great Repeal Bill update

30.03.17

While yesterday’s Article 50 letter from the UK Prime Minister to the President of the European Council had much greater political than legal content, today’s White Paper on the proposed Great Repeal Bill is focused on the legal changes that will result from the UK’s exit from the EU.

Legislating for the United Kingdom’s withdrawal from the European Union” was published by the Department for Exiting the European Union this afternoon.

The White Paper does not, however, include a draft Bill, which makes it difficult to assess how the White Paper’s proposals will be given effect. The proposals themselves are highly complex.

In the forewords to the White Paper both the Prime Minister and the Secretary of State for Exiting the European Union, David Davis, emphasise a desire to create certainty.

That is to be achieved by repealing the European Communities Act 1972 on the day on which the UK leaves the EU. At that same time steps will be taken to (a) reinstate all those parts of EU law that have been lost by repeal of the 1972 Act and (b) import into British law the remaining parts of EU law that have had direct effect in the UK as a result of our membership of the EU.

Giving proper effect to EU law

Where EU law would no longer ‘make sense’ in a solely British context (for example where it refers to the role of an EU institution such as the EU Commission) powers will be given to Ministers to “correct the statute book” and ensure that the law in question is workable.

This reads as a fairly mechanical and dull exercise but it is inevitable that there will be different views about what kind of ‘correction’ is needed to give proper effect to EU law.
 
How the UK courts are to deal with the new status of EU law is not straightforward.  Decisions of the Court of Justice of the European Union (CJEU) made before Brexit will continue to bind UK courts – and will be used by British courts to interpret and give effect to EU law which is preserved by the Great Repeal Bill. British courts will also be able to continue to look at EU treaties in order to interpret that law. If and when the UK (or the Scottish) Parliament changes any of this EU law then the courts will no longer have to have regard to CJEU case law. But it is not clear whether, for so long as EU law is not changed, new decisions of the CJEU on that ‘old’ EU law should be binding or influential in how our courts apply the law.
 
Existing EU law, preserved by the Great Repeal Bill, will also continue to take precedence over any pre-existing British law in any case where there is a conflict between the two.

Devolution and EU law

On devolution, the White Paper will empower devolved governments to take steps to “correct the statute book” in areas which are within their devolved responsibilities.  

However, where EU law has an impact on devolved matters – such as the environment and agriculture – there is no commitment that devolved administrations will now have unfettered freedom of action in those areas. Rather it is made clear that the UK Government may take the view that a “common UK framework” is needed for stability and ‘the effective functioning of the UK single market’. There are to be “intensive discussions” with devolved governments on that issue.
 
The White Paper makes clear that the Great Repeal Bill will be only the first of several Acts of the UK Parliament that will be needed following Brexit. In particular, a customs bill will be introduced to implement a UK customs regime and an immigration bill will also be introduced. On immigration it is said that “nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval”. How such an immigration bill might reflect or interact with the agreement to be negotiated with the EU on Britain’s exit is not discussed.
 
No formal consultation exercise has been launched but it is said that the Government welcomes feedback on the White Paper at repeal-bill@dexeu.gov.uk

If you have any questions, please get in touch with Christine O'Neill, Charles Livingstone or your usual Brodies contact. 

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