The Government has published its long awaited White Paper on the Great Repeal Bill (“The Bill”). This Bill is intended to be the cornerstone of the Government’s legislative programme designed to effect the UK’s exit from the EU.
The White Paper explains, in extremely broad terms, how the Government will legislate for the UK’s exit by introducing the Great Repeal Bill at the start of the next parliamentary session. The Bill will convert EU law (the ‘acquis’) as it applies in the UK on the day the UK leaves the EU into domestic law. In theory, same laws and rules will apply immediately before and after UK’s departure thereby preserving certainty. It will also give the Government powers to correct or remove the laws that would not function properly once Brexit occurs. This will be done, primarily, by secondary legislation.
References to the CJEU can still be made up until the moment the UK exits the EU. The White Paper does not explain what will happen to pending CJEU cases after the UK exits. After the UK’s exit from the EU, the CJEU will no longer have any jurisdiction over UK domestic matters. However, for as long as EU-derived law remains part of UK national law, the Bill will provide that any question on the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it existed on the day of exit. Insofar as case law concerns an aspect of EU law that is not being converted into UK law, that element of the case law will not need to be applied by the UK courts. The Bill will provide that historic CJEU case law be given the same binding, or precedent, status in UK courts as decisions of the Supreme Court. Going forward under normal UK constitutional processes Parliament will be free to change the law, and therefore overturn case law, where it decides it is right to do so. As a consequence of those same constitutional processes where a conflict arises between EU-derived law and new primary legislation passed by Parliament after the UK exits the EU, the new legislation will take precedence over the EU-derived law.
On leaving the EU the UK will no longer be party to the Charter of Fundamental Rights. However the White Paper makes clear that the UK’s withdrawal from the EU will not change the UK’s participation in the European Convention on Human Rights and there are no plans to withdraw from the Convention.
The White Paper states that even though much of the content of the treaties will become irrelevant after Brexit, the treaties may assist in the interpretation of the EU laws the UK will preserve. Thus, after exit, UK courts will continue to be able to look to the treaty provisions in interpreting EU laws that are preserved. Furthermore, the rights in the EU treaties that can be relied on directly in court by an individual will be incorporated into UK law.
The Bill will limit the power of Government and ensure that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law. This is obviously a controversial aspect of the White paper and the Government will consider the current constraints placed on the delegated power in section 2 of the ECA and assess whether similar constraints may be suitable for the new power, for example preventing the power from being used to make retrospective provision or impose taxation.
A link to the White Paper can be found here.
