On Thursday, the Government published its White Paper on legislating for Brexit. Much of its content had been foreshadowed in various ministerial statements, but a little more detail is now known. Here are a few observations.
- The overall approach is, as expected, to repeal the European Communities Act 1972 and to immediately convert EU law into national law, with the aim being to secure certainty and to ensure that the legislative system continues to function;
- The Bill will also implement the withdrawal agreement. This might seem like a minor task, but whether it is depends on the terms of the exit. For example, if part of the deal is a complex new settlement for EU nationals in the UK, that may have to be addressed through the Bill;
- The content of EU law to be transposed will be “directly applicable” EU law and Directives already transposed under the 1972 Act. One must presumably read “directly applicable” EU law to exclude most of the Treaties, but at that point some of the transposition becomes more complex (as paragraph 2.11 of the White Paper implicitly accepts). For example, the Immigration (European Economic Area) Regulations 2016/1052 incorporate definitions and concepts directly from the Treaties (e.g. the definition of “worker”). Ultimately, judgments will have to be made as to where the line is drawn in transposing these concepts into national law;
- The CJEU’s judgments before Brexit will be accorded the same status as Supreme Court judgments; judgments after that date will not have to be considered at all by the national courts. It is surprising, and perhaps unnecessary, that CJEU judgments are given a particular status as precedent. Potentially this could lead to odd situations where the CJEU departs from its previous decisions after Brexit, but the earlier authority can only be overturned in the UK by the Supreme Court. The Supreme Court might be bracing itself for an increased flow of work;
- Whilst the concept of implied repeal in the (former) EU field will be revived for legislation after Brexit, where there is a conflict between a domestic instrument and an EU derived instrument which both pre-date Brexit, the EU instrument will prevail. Thus Factortame type arguments may have life from beyond the grave;
- The extent and scope of delegated powers in the Bill is still a matter of great controversy. The White Paper suggests that the Government is acutely aware of this. The powers are characterised as being deployed to “rectify problems” which would otherwise occur if legislation were transposed without amendment. But what is clear from the White Paper is that this will in certain instances include value judgments (e.g. whether a duty to consult the Commission should be replaced with a duty to consult someone else, or no duty at all). Expect the formulation of these powers in the Bill, and their subsequent use, to be a matter of debate for years to come;
- In terms of the devolution settlement, perhaps unsurprisingly, the Government has chosen to give little detail as to their plans beyond a basic commitment to work closely with the various administrations and legislatures involved. The stated “guiding principle” will be to maintain the functioning of the UK single market by ensuring that no new barriers to living and working across the UK are created. This will be the Government’s priority when tackling the obvious tension around returned powers which within the established competencies of the devolved administrations (e.g. agriculture, environment). These will require, at the least, common frameworks to be agreed;
- More controversial still (particularly in the light of today’s revelation that the EU’s negotiating guidelines have put access to Gibraltar front and centre) is likely to be the subject of Crown Dependencies and Overseas Territories. The White Paper does no more than set out in summary form the current position vis-à-vis EU law, before declaring a commitment to engaging with the relevant jurisdictions. This is promised to include “technical engagement” on the implications of the Bill, but clearly this is primarily an attempt to kick the issue down the road;
- The working title remains the Great Repeal Bill, but there are some doubts as to whether it will stick. It might be worth recalling that the Bill in fact will only repeal the 1972 Act; and a quick search suggests that the adjective “Great” does not feature in the short title of any Act save where it is part of proper noun (Great Britain; the Great Seal). Even the Great Reform Act was, in reality, just the Reform Act;
- Overall, whilst the Great Repeal Bill is something of a sideshow to the substantive work of the negotiations, it is likely to form a critical part of our legislative picture for years to come. Expect a fairly innocuous Bill to fiercely contested in Parliament, and then fiercely litigated.
The White Paper is available here.