In March 2017 the government published a White Paper setting out its proposed approach to dealing with the legislative consequences of the United Kingdom's withdrawal from the European Union. This is to be contained within the so-called 'Great Repeal Bill' (yet to be published).
The White Paper provides the best view yet of how the government intends to maintain domestic legal certainty with regards to all EU-derived law, post-Brexit. There is, of course, the possibility that the results of the general election in June may change the approach.
What happens to EU-derived law?
The starting point of the White Paper is that nothing should change on the day of exit. With effect from the day the UK formally leaves the EU, the government intends to convert the existing body of European legislation into UK law at the same time as repealing the European Communities Act 1972.
This approach will be welcomed in many areas as providing a degree of continuity and stability in the legislative position. It also recognises that, without law which originates from the EU, gaps would be left in the UK's statute book and addressing all of these prior to exit would be an immensely difficult task. In order to achieve this objective, the Great Repeal Bill will convert directly applicable EU laws into UK law and preserve UK laws which currently implement EU obligations.
Additionally, broad powers to create secondary legislation will be granted to civil servants to ensure that the full EU position at the point of exit is incorporated into UK law and to make amendments where necessary to rectify laws which would no longer operate correctly when the UK leaves the EU.
EU courts and legal precedent
Importantly for certainty on the day of exit, historic EU case law will also be retained in force and given the same precedent status as decisions of the UK Supreme Court at least unless or until amended or overturned through subsequent Supreme Court decisions or through UK legislation.
Following exit, the EU Courts will no longer have supremacy or be approached for binding interpretations of EU derived law. This may result in differences between how UK law originally derived from the EU institutions is interpreted and applied in the UK and in the remaining Member States. UK Courts will continue to look at the same factors as they (or EU Courts) currently would in interpreting EU-derived legislation (e.g. general EU treaty provisions) save that this point of reference will be crystallised as at the date of exit.
Will the laws be changed?
The general intention is incorporate EU-derived law into the UK legal system without making material changes. However, there are two significant caveats to this.
Firstly, the delegated powers being granted to incorporate and amend EU laws so that they still operate effectively will need to be broad and there will be scope for more than one approach to be adopted. The government has not yet confirmed how this delegated power will be framed, and consequently exercised, to assess whether any divergence between UK and EU laws occurs.
The White Paper suggests there will be controls on use of the delegated powers so that they cannot be used to implement policy changes – and that they will be time-limited – but otherwise details on the controls have not yet been specified.
Secondly, at the point at which the UK leaves the EU, the government will be free to put in place legislation which amends pre-existing EU-derived law. The government's intention is that more material changes will be agreed through Parliament in the same way as normal UK legislation.
The White Paper states that the government’s intention is to introduce legislation taking effect from the point of exit to reflect the exit arrangements agreed with the EU. Any substantial changes put into place at the point of exit may give an indication of the direction of travel for future divergence from EU-derived law positions.