Conversion of existing EU law
The White Paper reaffirms the Government’s intention to convert the "acquis" into UK law at the moment the European Communities Act 1972 (ECA) is repealed. Both the repeal of the ECA and the conversion of the acquis (and particularly that part of EU law implemented into UK law using powers under the ECA) will be dealt with in the Great Repeal Bill, which will be introduced at the start of the next Parliamentary session.
Delivering a functioning statute book on exit is a substantial task. The White Paper recognises that simply deeming applicable EU law to be English (or Scottish) law will not be sufficient to address the issues. There are, for example, many references to EU institutions, regimes and systems built into current statutes. The White Paper envisages a substantial programme of secondary legislation, derived from powers granted under the Great Reform Bill and to take place over the next two years, to provide for “corrections” to the statute book to come into effect immediately on exit (see below).
The Government accepts that Brexit will trigger the need for completely new legal frameworks in some areas of policy currently addressed by EU law. The White Paper is clear that there will be separate legislation in the next two years in areas such as customs policy and immigration.
A practical consequence of this approach is that we will all have to take steps to capture and record the state of EU law on 29 March 2019. This may not be as simple as it sounds; the UK courts will be required to determine questions of the meaning of EU derived law by reference to case law of the Court of Justice of the European Union (CJEU) on that day. Those historic decisions of the CJEU will be given the status of binding precedent similar in force to the decisions of the Supreme Court. However, decisions by the CJEU after March 2019 which interpret historic EU legal provisions will no longer be binding.
On Brexit, EU law will no longer take supremacy over English law. Post Brexit legislation will take precedence over EU law incorporated into English law by the Great Repeal Bill; but pre Brexit EU law will take precedence over pre Brexit domestic law.
The Government has concluded that “a very significant proportion of EU-derived law for which Government departments are responsible contains provisions that will not function appropriately if EU law is simply preserved”. To address this, the White Paper foresees extensive secondary legislation over the next two years.
Commentators have highlighted the democratic challenges that are implicit in such a substantial programme and the need for continuing Parliamentary scrutiny of the process. The White Paper acknowledges this issue but reaches no conclusion beyond the need for “a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area”. That discussion needs to be concluded quickly, as the Government is clear that the process needs to begin as soon as the Great Repeal Bill becomes law.
The White Paper indicates that a significant amount of analysis has been undertaken by Central Government; and suggests that there is general awareness of the size of the task involved. It is silent on the question of resource or impact on other Parliamentary business. Overall it is more of a summary of work to date than a comprehensive conclusion of how the Government will tackle the issue. It does signal a profound change to the canon of laws in the UK in the next two years.
Perhaps not surprisingly the White Paper is silent on those areas of EU law, much focussed on in recent litigation, which are beyond the reach of domestic legislation. These include the rights of UK citizens in other member states.
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