Brexit/Great Repeal Bill 2016

Assumptions, approach and aims of the Bill

The Bill will aim to move all EU law into UK law on the day that the UK formally leaves the EU. It appears to assume that EU law will therefore dis-apply when the Article 50 process is completed.

This is consistent with the Brexit White Paper but potentially inconsistent with the EU’s insistence that within any transitional period EU law and CJEU jurisdiction would continue to apply, and the EU’s implied presumption that a transitional period may be necessary.

The Great Repeal Bill will convert EU law as it applies in the UK into domestic law on the day we leave – so that wherever practical and sensible, the same laws and rules will apply immediately before and immediately after our departure. It is not a vehicle for policy changes – but it will give the Government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU

1.12 In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law … This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before.

1.13 If the Great Repeal Bill did not convert existing EU law into domestic law at the same time as repealing the ECA, the UK’s statute book would contain significant gaps once we left the EU. There are a large number of EU regulations and many other EU-derived laws which form part of our law which, if we were to repeal the ECA without making further provision, would no longer apply, creating large holes in our statute book.

1.14 Simply incorporating EU law into UK law is not enough, however. A significant amount of EU-derived law, even when converted into domestic law, will not achieve its desired legal effect in the UK once we have left the EU. For example, legislation may refer to the involvement of an EU institution or be predicated on UK membership of, or access to, an EU regime or system. Once we have left the EU, this legislation will no longer work. Government must act to ensure that the domestic statute book continues to function once we have left the EU.

Converting EU law into UK law

What does the Great Repeal Bill convert into UK law? The Bill will ensure that, wherever possible, the same rules and laws apply on the day after we leave the EU as before.

This means that:

• the Bill will convert directly-applicable EU law (EU regulations) into UK law (paragraph 2.4)
• it will preserve all the laws we have made in the UK to implement our EU obligations (paragraph 2.5)
• the rights in the EU treaties that can be relied on directly in court by an individual will continue to be available in UK law (paragraph 2.11)
• the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court (paragraphs 2.12 to 2.17)

Case law of the CJEU

2.16 … we propose that the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court. It is very rare for the Supreme Court to depart from one of its own decisions or that of its predecessor, the House of Lords. The circumstances in which it will, exceptionally, do so, derive from a Practice Statement made by the House of Lords in 1966, and adopted by the Supreme Court in 2010. That Statement set out, among other things, that while treating its former decisions as normally binding, it will depart from its previous decisions “when it appears right to do so”.

2.17 We would expect the Supreme Court to take a similar, sparing approach to departing from CJEU case law. We are also examining whether it might be desirable for any additional steps to be taken to give further clarity about the circumstances in which such a departure might occur. Parliament will be free to change the law, and therefore overturn case law, where it decides it is right to do so.

See also

• wikipedia:Great Repeal Bill 2016