Charles Livingstone: Great Repeal Bill is just the beginning

The Prime Minister's triggering of Article 50 caused a step-change in the politics of Brexit, with the European Council's draft guidelines and the European Parliament's agreed negotiating principles setting the stage for the negotiations that will decide many of the key legal consequences of Brexit.

Theresa Mays triggering of Article 50 sets the stage for negotiations, both with the European Parliament and devolved administrations here

However, the UK government has also set out its procedural intentions for Brexit, publishing a White Paper on the much-trailed Great Repeal Bill (GRB). The forewords to the White Paper focus on certainty but, because it does not include a draft of the GRB itself, it is not possible to know exactly how the process is intended to work. The White Paper nevertheless provides at least the beginnings of clarity.

The eponymous ‘Great Repeal’ will be the repeal of the European Communities Act 1972.

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The GRB will also allow steps that (a) save those parts of EU law given effect by orders made under the 1972 Act, which would otherwise fall because of that repeal and (b) import into UK law that EU law that has direct effect here simply because of our EU membership.

This approach was expected, as otherwise UK statute books would revert to a largely blank slate in significant areas. Re-enacting every EU regulation and directive would be impossible in the time available, even with no changes to the underlying policy. Where policy change is necessary or desired, this will be covered in separate legislation. Customs and immigration are the named examples, with the White Paper saying on the latter that “nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without parliament’s approval”.

Where EU law would no longer “make sense” in a UK-only context (eg where it is enforced by an EU institution such as the Commission), the GRB will allow the government to adapt it to make it workable. While this is presented as a largely mechanical exercise, parliament may bristle at the proposal to hand the government extensive ‘Henry VIII’ powers, which will allow it to amend pre-existing legislation (including Acts of Parliament) with much-reduced parliamentary scrutiny. There may also be competing views about how best to adapt particular laws, including which institutions should take over their enforcement.

Competing views have already arisen over how Brexit should affect the devolved settlements. The devolved governments will be able to use the GRB’s Henry VIII powers in areas within devolved responsibility. However, where EU law currently restricts the scope for action in otherwise devolved areas (eg fisheries, agriculture and the environment), the UK government’s premise appears to be that these areas may be fully devolved in law but are only partly devolved in fact.

The White Paper therefore proposes that EU-level harmonisation should be replaced by a “common UK framework”, ensuring continued stability and “the effective functioning of the UK single market”. While that is subject to an “expectation” devolved institutions will still see a “significant increase” in their decision-making powers, the Scottish Government in particular is likely to resist any outcome that does not give it a completely free hand. The White Paper promises “intensive discussions” with the devolved administrations.

The White Paper also outlines how UK courts are to treat EU law after Brexit. We now know that in any conflict between pre-Brexit EU law and pre-Brexit UK law, the former will continue to take precedence. Pre-Brexit decisions of the Court of Justice of the European Union (CJEU) will take on the same precedent status as decisions of the UK Supreme Court, where they concern EU law preserved by the GRB and not subsequently altered by UK or devolved legislation. Lower courts will therefore remain bound, and the Supreme Court should only depart “sparingly”. However, it is not clear what status will be given to post-Brexit CJEU decisions on pre-Brexit EU law, whether EU law claims that arise pre-Brexit will remain actionable, or what will happen to UK cases that are pending before the CJEU when Brexit occurs.

We can expect further clarity on these and other issues to emerge in due course, though many points will be heavily dependent on the Brexit negotiations and so may not be resolved for some time.

Charles Livingstone is a partner in the public law & regulatory team at 
Brodies LLP.