The Department for Exiting the EU has published a White Paper setting out its intended approach for the publishing of the Great Repeal Bill at the beginning of the next Parliamentary session.

The Great Repeal Bill will not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. For example, the Bill will aim to prevent delegated power from being used to impose taxation Rather, the Government will introduce a number of further bills during the course of the next two years to ensure the country is properly prepared for withdrawal – and that Parliament has the fullest possible opportunity to scrutinise this legislation.

The Bill will do three main things:

1. First, it will repeal the ECA and return power to UK institutions.
2. Second, subject to the detail of the proposals set out in this White Paper, the Bill will convert EU law as it stands at the moment of exit into UK law. This allows businesses to continue operating knowing the rules have not changed significantly overnight. It also ensures that it will be up to the UK Parliament (and, where appropriate, the devolved legislatures) to amend, repeal or improve any piece of EU law (once it has been brought into UK law) at the appropriate time once the UK has left the EU.
3. Finally, the Bill will create powers to make secondary legislation. This will enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU, so that the legal system continues to function correctly.

Case law of the Court of Justice of the European Union

The Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU. For example, CJEU case law has over the past four decades clarified what is and is not subject to VAT and failing to follow that case law in our own legal system would create new uncertainties about the application of VAT. In this way, CJEU case law will be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court.

Where a conflict arises between EU-derived law and new primary legislation passed by Parliament after our exit from the EU, then newer legislation will take precedence over the EU-derived law we have preserved. In this way, the Great Repeal Bill will end the general supremacy of EU law. 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.

Devolution

The United Kingdom’s domestic constitutional arrangements have evolved since the UK joined the European Economic Community in 1973. The current devolution settlements were agreed after the UK became a member of what is now the EU and were, therefore, premised on EU membership. In areas where the devolved administrations and legislatures have competence, such as agriculture, environment and some transport issues, the devolved administrations and legislatures are responsible for implementing the common policy frameworks set by the EU.

As powers are repatriated from the EU, it will be important that the effective functioning of the UK single market is maintained. Examples of where common UK frameworks may be required include where they are necessary to protect the freedom of businesses to operate across the UK single market and to enable the UK to strike free trade deals with third countries. This will be an opportunity to determine the level best placed to take decisions on these issues. It is the expectation of the Government that the outcome of this process will be a significant increase in the decision making power of each devolved administration.