- Government publishes “Great Repeal Bill” designed to untangle UK from EU law.
- However, all EU laws and regulations wil be retained in the immediate aftermath of Brexit.
- European court case law will also still apply to UK laws.
- EU law will remain supreme to British law passed before Brexit.
- Government is handed sweeping powers to bypass parliament to amend laws.
LONDON — The government today published it’s White Paper on the Great Repeal Bill.
The Bill has been sold as a means of untangling the UK from European laws and courts. However, the White Paper confirms that in reality Britain will remain subject both to EU law and European court case law for the foreseeable future. Here’s how it will work.
Repeal of the European Communities Act.
All existing EU treaties are effective in UK law through the European Communities Act (ECA). Under the ECA, European law is supreme over domestic law and UK courts must follow the verdicts of the Court of Justice of the European Union (CJEU).
Under the ECA, European law is supreme over domestic law and UK courts must follow the verdicts of the Court of Justice of the European Union (CJEU).
The repeal of the ECA has therefore been a major aim of those campaigning to leave the EU.
But repealing EU law is not that simple.
However, repealing EU law is not simply a case of repealing one law. While much of European law is effective through the ECA, much of it isn’t. Huge parts of EU law are already embodied in both primary and secondary UK legislation, while other parts are not really laws at all but judgments made by the European Court of Justice, or rulings by EU regulators.
As the government acknowledges in its white paper today, simply repealing the ECA would create huge confusion and leave “large holes” in the British legal system. As a result, the government has come up with a solution that many Brexiteers may not be happy with.
Copying and pasting over all EU law.
Ministers are therefore looking to take a “snap shot” of the entire body of EU laws and regulations (known as the acquis) on the day we leave before transferring it over to the UK statute book. This law can then be slowly amended or repealed as time goes on. However, this is not quite as simple as it sounds. For one thing, EU law is constantly changing and will continue to do so, whereas the work needed to take a “snap shot” of it must begin now. Also, the nature of the EU-derived laws and regulations that will apply to the UK post-Brexit will be a large part of the negotiations with the EU, the result of which we won’t know until the last moment.
As the white paper itself acknowledges: “There is much that can be taken forward during those negotiations, but some legislation will necessarily need to await their conclusion.” This leads to another problem.
There is not enough time
Amending thousands of laws and regulations bis a job that would ordinarily take decades. The government has less than two years. And if they don’t act fast, whole areas of British law risks falling into a legal no-mans land. However, the government has a solution.
However, the government has a solution.
New powers to “correct EU-derived laws”.
As a result, the government has decided to cut out parliament from most of the amendments through the use of secondary legislation and statutory instruments. Statutory instruments are powers designed to allow ministers the ability to make minor time-sensitive and technical changes to laws, without first seeking the approval of MPs.
Their use has increased greatly over recent years and the Great Repeal Bill will increase their use even further.
According to the white paper: “The Great Repeal Bill will create a power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU.”
It estimates that there will need to be around 1,000 changes by statutory instrument made by ministers over the next two years, around the same as made in each of the last two parliaments. However, this is just an estimate and the number could be larger. As the White Paper acknowledges: “It is not possible to be definitive at the outset about the volume of legislation that will be needed, as it will be consequent on the outcome of negotiations with the EU and other factors.”
But UK courts will remain subject to EU law.
While Theresa May has spoken often of the fact that our law will “no longer be set in Brussels and Luxembourg” post-Brexit, today’s white paper confirms that it will continue to have an effect on our own courts. Under the bill, all existing CJEU case law will continue to apply in UK courts meaning British citizens will continue to be subject to the rulings of European courts.
More controversially, the white paper also states that while as a “general rule” UK law will in future be supreme over EU law, existing EU case law will continue to have precedence over existing British law.
According to the White Paper: “If, after exit, a conflict arises between two pre-exit laws, one of which is an EU-derived law and the other not, then the EU-derived law will continue to take precedence over the other pre-exit law.”
This is likely to be hugely controversial among many Brexit campaigners, for whom the supremacy of EU law has long been a major bugbear.
No clear safeguards against the abuse of delegated powers.
In his statement to the Commons, David Davis insisted that there would be safeguards preventing ministers from abusing the widespread delegated powers provided under the Great Repeal Bill to rewrite the statute book without democratic oversight by Parliament. However, while the paper has lots of assurances contained within it that these powers will not be abused, there are no clear safeguards preventing it from being so.
The white paper insists that: “The Government will give more specific assurances to Parliament about the limits of this power as it makes the case for it being granted.”
However, it then adds that “this will need to be balanced against ensuring the power is broad enough to make all of the necessary amendments to the statute book within the time frame determined by the EU withdrawal process.”
In other words, the severe time pressures the government faces are likely to trump any concerns over the abuse of ministerial powers.
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This column does not necessarily reflect the opinion of Business Insider.
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