Legislating for Brexit: the White Paper

Yesterday’s White Paper, Legislating for the United Kingdom’s withdrawal from the European Union, provides some welcome detail on the nature of the challenge facing Parliament as it scrutinises the Government’s plans over the next 2 years. Preparing the statute book for the day the UK leaves the EU in such limited time represents an enormous legislative task. Drafting legislative solutions to cover the uncertainties identified in the White Paper will require ingenuity, foresight and technical skill. Parliament will also want to be satisfied that such solutions strike the appropriate balance between allowing practical flexibility and adequate accountability.

Detailed surgery of the statute book

Leaving the EU is a fundamental change to the UK constitution. EU law is deeply embedded in the UK’s multiple legal systems in myriad different forms. The White Paper acknowledges that legislation is required to prevent “large holes” appearing in our statute book (1.13) on the day the UK leaves. From that day directly applicable EU law will no longer apply through the European Communities Act 1972.

The Government had already explained that the Great Repeal Bill would incorporate the acquis communitaire, the body of EU law, into UK law. The White Paper acknowledges that incorporation alone is not enough. Detailed surgery of the statute book is required on a large scale: “it is clear that a very significant proportion of EU-derived law for which Government departments are responsible will not function appropriately if EU law is simply preserved” (3.5).

Legislation that refers to EU institutions is cited as one example, but critically so are the negotiations: “clearly it is not possible to predict at this stage how every law is to be corrected, as in some areas of policy the solution may depend on the outcome of negotiations” (3.12). The Great Repeal Bill has to provide legal solutions to at least two major uncertainties: the “operability” of EU law post-Brexit and the outcome of the negotiations.

The shape of the Bill

The White Paper does not contain any of the Great Repeal Bill’s provisions in draft form. It hints that the Bill will have a relatively simple structure, even though the legal issues it addresses are highly complex.

The White Paper indicates the Bill’s aims will be limited to enabling changes to the law “necessary to ensure the law continues to function properly” (1.21). The Bill will not tackle substantive policy areas in detail. Directly applicable EU law will not be “copied out”, instead all regulations will be transposed in one go by a general provision that provides that all EU law that applied at the time the UK leaves will continues to apply, post-Brexit, unless Parliament provides otherwise.

Identifying the law that applies post-Brexit will therefore require reference to the EU law that applied in the UK law on Brexit day, and reference to any post-Brexit UK legislation amending it.

New primary legislation?

Where new legal frameworks are necessary, further primary legislation will be needed, with “a number of further bills” promised over the next two years. These will include a customs bill and an immigration bill. The White Paper does not indicate whether these bills will also include delegated powers to enable the Government to cover a range of possible outcomes to the negotiations.

The status of EU law

By repealing the ECA 1972, the Great Repeal Bill intends to change the status of EU law in the UK “ending the general supremacy of EU law”. Whilst this is clear, the White Paper shows that in practice the status of EU-derived law post-Brexit may be more complex. EU-derived law will continue to take precedence other laws enacted before Brexit day.

Also, a Courts of Justice of the European Union (CJEU) judgement handed down pre-Brexit will have the status of UK Supreme Court judgment post-Brexit. This means it will be regarded as binding unless the Supreme Court itself departs from it, which it will only do for good reason. This is to ensure some continuity and certainty in the way that EU-derived law is interpreted. It raises the question of how the courts will treat judgments of the CJEU given post-Brexit, and in particular whether the Great Repeal Bill will provide a clear instruction as to whether UK courts can take account of such judgments when interpreting EU-derived law.

Delegated powers

The proposed inclusion of delegated powers, particularly those used to amend primary legislation, has generated much interest in Parliament. The White Paper makes the case for such powers, emphasising the scale of the changes required to ensure that the statute book functions effectively (the “operability” issue), and ensure that the Government can respond to the negotiations as they proceed.

The White Paper explains that the delegated powers in the Bill are also intended to enable the Government to implement the withdrawal agreement by secondary legislation (1.18). It explains this process would be separate from, but presumably coordinated with, the vote in both Houses on the final agreement.

The White Paper suggests that the power included in the Great Repeal Bill will be broadly framed so as to enable the Government “to make all of the necessary amendments to the statute book within the timeframe determined by the EU withdrawal process” (3.15).

The Government states the purpose of the power should be limited, so that policy change unrelated to dealing with the effectiveness of EU-related legislation cannot be done through the power in the Great Repeal Bill (3.17). The White Paper does not explain precisely how the power will be limited so as to only enable changes that give effect to both “operability” and the outcome of the negotiations.

Parliamentary procedure

The Government is proposing to use existing negative and affirmative procedures to enact secondary legislation under the Bill, but indicates that it is willing to engage with Parliament as to the choice of procedure to get the appropriate balance between scrutiny and speed. This will be of interest to the Commons Procedure Committee, which is currently holding an enquiry into the proposed use of delegated powers in the Bill.

How will the Great Repeal Bill affect devolution?

The White Paper emphasises the value to the integrity of the UK economy of having a common UK framework, which avoids creating “new barriers to living and doing business within our own Union” (4.3). It states that EU frameworks will be replaced by UK legislation (4.4). Such frameworks would include those for agriculture and fisheries. The White Paper outlines that the UK Government will negotiate with the devolved nations as to how these frameworks will operate, and explains that they expect “the outcome of this process will be a significant increase in the decision making power of each devolved administration” (4.5). This suggests greater powers for the devolved Ministers, but does not mention the legislatures.

The White Paper adds a similar point on EU law in general, proposing that devolved Ministers should gain the power to amend devolved law in order to correct any law that will not operate properly otherwise. This would parallel the powers proposed for UK Ministers.

 

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Photo credit: Commission by Andrew Gustar (Attribution-NonCommercial-NoDerivs Creative Commons license)