Following notification of the UK’s intention to leave the EU under Article 50 of the TFEU on 29 March 2017, the government has published a White Paper on its plans for the ‘Great Repeal Bill’.

What’s the issue?

In our March edition, we looked at issues around the ‘Great Repeal Bill’ (GRB) which had been highlighted by the House of Lords Select Committee on the Constitution.

What’s the development?

The government has now published its White Paper on the GRB. While the White Paper is fairly high level, it answers some (although by no means all) of the uncertainties raised by the House of Lords Committee, particularly in relation to the application of CJEU law post Brexit. The headlines are that the GRB will:

  • repeal the European Communities Act 1972 from date of exit;
  • preserve the rights in EU treaties that can be relied on directly in court by individuals;
  • convert existing EU law (as it applies to the UK) into national law – this means that around 12,000 EU Regulations will be preserved as at the date of exit unless and until they are repealed or amended;
  • preserve all laws made in the UK to implement EU obligations – this includes around 7,900 statutory instruments which have implemented EU law such as Directives; equivalent statutory instruments made by the devolved administrations; and UK statutes incorporating a degree of EU influence;
  • give pre-Brexit CJEU law the same binding precedent status as Supreme Court decisions. The GRB will not give the CJEU a role in interpreting new UK law passed after Brexit. Questions of interpretation of EU-derived law will be determined in the UK courts by reference to CJEU case law as it exists on the date of exit. There will be no requirement to consider CJEU law decided after the date of exit (although David Davis remarked to the Commons that the Supreme Court “often looks at what is done by other courts around the world”). The Supreme Court will be expected to depart from applicable CJEU law in the same way that it has discretion to depart from its own decisions i.e. “sparingly…when it appears right to do so”;
  • create powers to make secondary legislation in order to enable corrections to be made to laws which would no longer work appropriately and allow domestic law to reflect the content of any withdrawal agreement – these are the controversial Henry VIII clauses which allow the government to amend primary legislation through secondary legislation. These powers will be time-limited and the government suggests the level of scrutiny i.e. whether the secondary legislation is subject to the negative procedure (which does not require debate but where members of either House can require a debate and vote) or the affirmative procedure (which requires debate and approval by both Houses) be decided on a case by case basis;
  • set out the order of precedence after exit, from which point:
    • new UK legislation will trump EU-derived law;
    • EU-derived law which applies at the time of exit will trump non-EU derived law in force at the time of exit; and
  • give Parliament a vote on the exit deal.

The White Paper also deals with the devolved administrations, stresses that certain areas will be dealt with by primary legislation outside the scope of the GRB, including immigration and customs, and confirms that Brexit will not alter the UK’s status as a signatory to the European Convention on Human Rights.

What does this mean for you?

For now, we are all keeping a watching brief. As the House of Lords Committee pointed out, the negotiations provide a moving target which makes it very difficult to get clear answers on the details. General principles have become somewhat clearer. Much, however, remains to be seen – not least the extent to which policy may be changed using secondary legislation (despite the government’s assurances to the contrary), and whether or not the Herculean task of reviewing and revising EU-derived legislation will be completed on time.