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Brexit: Government publishes the Great Repeal Bill White Paper

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07/04/2017

Background

 On 30 March 2017, the Government published a White Paper: Legislating for the United Kingdom’s withdrawal from the European Union (White Paper). The White Paper can be found here.

The White Paper follows the Government’s formal notification to the European Council on 29 March 2017 of the UK’s intention to leave the European Union, and its triggering of the procedure under Article 50 of the Treaty on European Union. You can read our analysis of the Government’s Article 50 withdrawal notice here.

The White Paper sets out the Government’s legislative strategy for preparing for Brexit, and primarily, the intended mechanics of the Great Repeal Bill (Bill).

Overview of the White Paper

The Bill has three main aims:

  • To repeal the European Communities Act 1972 (“ECA 1972”) on the day the UK leaves the EU.
  • To convert EU law (including case law) as it stands on the day the UK leaves the EU into UK law.
  • To enable changes to be made by secondary legislation to those laws that would otherwise not function sensibly after the UK exits the EU.

In effect, the Government intends that, wherever practicable, the same law and rules will apply immediately before and immediately after the UK’s exit from the EU.

Conversion of existing EU law

Section 2 of the ECA 1972 gives effect to EU law in domestic law. The Government describes the repeal of the ECA 1972 as a “first step” in order to provide “maximum clarity” that, following Brexit, UK law and not EU law will have primacy in the UK. This will occur on the day the UK leaves the EU.

The White Paper estimates that “the necessary corrections to the law will require between 800 and 1,000 statutory instruments”, or about the same number of statutory instruments as are now made in a single year.

The White Paper observes that the UK will remain a full member of the EU in the intervening period and that the rights and obligations that entails remain in force until the UK formally leaves the UK. The Government intends to continue to negotiate, implement and apply EU law during this period.

Delegated powers

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.

Some commentators have criticised the proposed inclusion of these delegated powers 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

 A declared aim of the Government in the Brexit process was that the judgments of the Court of Justice of the European Union (CJEU) would no longer bind the courts in the UK.

The White Paper outlines the nature of the UK’s interaction with the CJEU. The Bill will bring to an end the jurisdiction of the CJEU in the UK and will not oblige the UK courts to consider cases decided by the CJEU after the UK has left the EU.

However, 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. Any question as to the meaning of EU-derived law will be determined by the UK courts by reference to the CJEU’s case law as it exists on the day the UK leaves the EU.

When will the Bill come into force?

The plan is for the Bill to complete its passage through Parliament well before the time when the UK leaves the EU, but for it to include “commencement provisions” enabling ministers to bring it into force at the moment of their choosing. The Government has said that the Bill will come into force “from the day we leave the European Union”. This is likely to be 29 March 2019, being two years after the Government formally triggered Brexit by delivering the Article 50 notice to the European Council on 29 March 2017, although if Article 50 negotiations are extended, this may be later.

What next?

The Government’s intention is for the Bill to be introduced in the next Queen’s Speech and introduced in the parliamentary session. The session is due to begin in May or June 2017.

The progress of the Bill will run in parallel with the Article 50 negotiation process, but it appears it will 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 such matters as the customs regime and immigration.

A significant amount of the next parliamentary session will be consumed by the mechanics of the Bill and the supplementary bills that follow it. There is little doubt that transposing EU law into UK law is a substantial task and will entail a huge amount of work.

If you should like to discuss the above, or any implications for your business, please contact Trudy Feaster-Gee (Partner, Barrister) in the first instance.

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