White paper sets out Great Repeal Bill approach

Wherever possible, the same rules and laws apply on the day after the UK leaves the European Union as before, the Government confirmed in a white paper published today.

The day after triggering the article 50 process for leaving the EU, the Prime Minister and Secretary of State David Davis set out the approach that will be adopted in the Great Repeal Bill, which will be introduced to Parliament following the Queen's speech this spring.

In essence:

• the bill will convert directly-applicable EU law (EU regulations) into UK law;
• it will preserve all the laws made in the UK to implement EU obligations;
• rights in the EU treaties that can be relied on directly in court by an individual will continue to be available in UK law;
• the bill will provide that historic CJEU case law be given the same binding, or precedent, status in UK courts as decisions of the UK Supreme Court – with the court therefore having the same power to depart from previous decisions in exceptional circumstances.

As regards human rights, the paper states that the EU's Charter of Fundamental Rights will not be converted into UK law, since it only applies to member states when acting within the scope of EU law.

"However," it continues, "the Charter was not designed to create any new rights or alter the circumstances in which individuals could rely on fundamental rights to challenge the actions of the EU institutions or member states in relation to EU law... The Government’s intention is that the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK."

And it asserts: "The UK’s withdrawal from the EU will not change the UK’s participation in the ECHR and there are no plans to withdraw from the ECHR."

The paper goes on to insist, despite the warnings in a House of Lords committee report, that extensive powers to make delegated legislation will be necessary, as otherwise "we would require a prohibitively large amount of primary legislation to correct these problems". However it recognises certain constraints: "Crucially, we will ensure that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU. Additionally, we will consider the constraints placed on the delegated power in s 2 of the European Communities Act to assess whether similar constraints may be suitable for the new power, for example preventing the power from being used to make retrospective provision or impose taxation."

Further, "Parliament will need to be satisfied that the procedures in the bill for making and approving the secondary legislation are appropriate. Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance that will have to be struck between the importance of scrutiny and the speed of this process."

As regards the devolved legislatures, "To provide the greatest level of legal and administrative certainty upon leaving the EU, and consistent with the approach adopted more generally in legislating for the point of departure, the Government intends to replicate the current frameworks provided by EU rules through UK legislation. In parallel we will begin intensive discussions with the devolved administrations to identify where common frameworks need to be retained in the future, what these should be, and where common frameworks covering the UK are not necessary."

The outcome, the Government expects, "will be a significant increase in the decision making power of each devolved administration".

Click here to access the policy paper.

• Following the giving of the article 50 notice yesterday, Lorna Jack, chief executive of the Law Society of Scotland, commented: “Exiting the EU involves many significant aspects, including economic, financial, legal, social, and cultural, which will affect everyone living in Britain and in Europe. As the negotiations move forward it will be crucial for the UK Government to continue to engage with the devolved administrations and civic society to ensure their interests and priorities are considered. It will also to be vital to ensure stability in the law and maintain so far as possible, close collaboration in freedom, security and justice measures." Priorities for which the Society has been pressing are promoting continued professional recognition and continued rights of audience in the EU; protecting legal professional privilege for the clients of Scottish lawyers working in the EU or advising on EU law; and "clarity on the position of the millions of EU nationals currently residing in the UK, including many who work in the Scottish legal profession".