Brexit: Government White Paper published
31 March 2017
The Government has published a White Paper, setting out in more detail its proposals for a Great Repeal Bill (as announced last year) designed to achieve a “smooth and orderly exit” from the European Union (David Davies, Secretary of State for Exiting the European Union).
The White Paper is (both literally and metaphorically) full of gaps. There is no draft Bill accompanying it and no indication of when the draft Bill will be published, suggesting that the Government lawyers are still some way off a workable piece of legislation.
Conversion of EU law
While short on substance and technical detail, the White Paper confirms the Government’s intention to repeal the European Communities Act 1972 and to convert all existing EU laws (estimated at over 12,000 EU regulations and around 7,900 domestic statutory instruments) into UK law on the day we depart from the EU.
Unless and until domestic law is changed by legislators in the UK, the Government’s position is that legal rights and obligations should ‘where possible’ be the same after we have left the EU as they were immediately before we left. As anticipated, therefore, we will not see any significant changes to our existing EU-derived legislation on the exit date, or immediately afterwards. There is an important caveat to this, however.
The Bill will contain delegated powers for the Government to make secondary legislation to enable ‘corrections’ to be made to the statute book, to fill any gaps that arise as a consequence of leaving the EU in order to allow existing legislation to operate effectively. For example, this will be necessary where certain pieces of legislation make express reference to EU law or institutions.
The proposed inclusion of these delegated powers has already been criticised as enabling a sweeping political power-grab. However, the White Paper refers to the powers as being limited to making technical changes rather than introducing any policy changes. This is likely to be the subject of significant ongoing political debate before the Bill is passed.
Court of Justice of the European Union
One of the biggest unanswered questions when the Great Repeal Bill was first announced was the future status of decisions handed down by the Court of Justice of the European Union (CJEU, also known as the ECJ).
The White Paper sets out the Government’s proposal that in order to “maximise certainty”, UK courts will be required to determine the meaning of EU-derived legislation by reference to CJEU case law as it exists on the day we leave the EU. This means, for example, that existing CJEU decisions on holiday pay under the EU Working Time Directive will continue to apply to the interpretation of the Working Time Regulations 1998, until such time as those regulations are amended or repealed.
The intention is not, however, “to fossilise the past decisions of the CJEU forever”. The Bill will provide that decisions of the CJEU will have the same status as decisions of the UK Supreme Court, meaning that while such decision are normally binding, in certain (limited) circumstances the Supreme Court may depart from CJEU case law.
The White Paper also suggests that in cases of conflict between two pre-exit laws, one EU-derived and the other not, the EU-derived law will continue to take precedence over the other until such time as the law is changed by Parliament. However, any new legislation passed by Parliament after our exit will take precedence over EU-derived law, which according to the White Paper means that the Bill “will end the general supremacy of EU law”.
What is still not clear is what, if any, status new post-exit decisions of the ECJ will have in relation to the interpretation of EU-derived laws that have been imported into UK law as a result of the Great Repeal Bill. It would surely be artificial and illogical to disregard these decisions entirely, although it might be that they are given ‘persuasive’ rather than binding authority. We will have to wait for further details of the Government’s intentions.
Charter of Fundamental Rights
The White Paper confirms that the EU Charter of Fundamental Rights, which codifies fundamental rights applicable to member states in the exercise of EU law, will not be converted into UK law by the Great Repeal Bill. The Government’s current position is that the UK’s withdrawal from the EU will not affect the UK’s participation in the European Convention on Human Rights (ECHR), which is an instrument of the Council of Europe, not the EU.
The Government’s intention is for the Great Repeal Bill to be introduced at the start of the next parliamentary session (likely to be in May 2017), and it is appears unlikely that a draft will be issued for consultation in advance.
The progress of the Great Repeal Bill will run alongside the Article 50 negotiation process, but it will apparently be designed to operate effectively in the event no agreement is reached within the two-year period for negotiation. The Government also intends to introduce a number of other bills during this period, to cover matters such as the customs regime and immigration.
There is no doubt that the task ahead is enormous, and suggestions that the civil service has insufficient capacity to deal with the complexities of the process may prove well-founded.
The content of this article is for general information only. For further information, please contact Liz Stevens. Law covered as at March 2017.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2017.