A major strand of UKELA’s work on Brexit is to scope for issues that many need addressing under the Great Repeal Bill. Whilst we do not yet have sight of the Bill, the Conservative Government’s March 2017 White Paper outlines key elements of their proposed approach.
Impact on the Statute Book
The headline purpose of the Bill is to repeal the European Communities Act 1972 (ECA) so as to implement the decision to leave the EU and ‘take back control’ of our laws.
Much of the White Paper, however, focuses on how the Bill will ‘ensure that wherever practical and sensible, the same laws and rules will apply immediately before and immediately after our departure’. This will be done by:
converting directly applicable EU regulations and decisions into UK law; and
preserving domestic laws that implement EU law. This is a hugely important task in the environmental field, as so many environmental regulations have been made under powers in section 2(2) ECA.
The Bill will also create a ‘power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU’. The White Paper anticipates some 800-1000 pieces of secondary legislation under this power, to ‘correct’ both secondary and primary legislation. It cites provisions that refer to the UK’s ‘EU obligations’ or to European institutions as examples of problems that may need rectifying in this way.
The power to make secondary legislation on a massive scale is likely to prove the most contentious aspect of the Bill. In the environmental field, there will be fears that it could be used as a vehicle for deregulation and downgrading levels of environmental protection. More generally, there will inevitably be concerns at the lack of Parliamentary scrutiny attached to secondary legislation, and resistance to new ‘Henry VIII’ powers.
Recognising these concerns, the White Paper cites the ‘need to ensure that the right balance is struck between the need for scrutiny and the need for speed’. It indicates 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’; and
‘the power will be time-limited’, as most of the changes will need to be made before withdrawal from the EU.
Whilst these limitations seem appropriate to the purpose of the Bill, they raise the question of how future governments will be able to legislate to bring in new environmental policies. Limits on Parliamentary time will mean there is little scope for new primary legislation. Further, after Brexit governments may struggle to find the necessary powers to make regulations in some areas. Examples are nature conservation and water pollution, where heavy reliance has been made on powers in section s2(2) of the ECA to legislate by regulations. Under the Great Repeal Bill, section 2(2) will be repealed, and the White Paper makes no mention of new powers to replace it to bring in policy changes unrelated to Brexit.
Interpretation of EU law after Brexit
After Brexit, questions of interpretation of EU law will be a matter for our national courts, as the CJEU will cease to have jurisdiction. The White Paper states that the Bill will not require domestic courts to consider the CJEU’s jurisprudence. However, it also indicates that questions of interpretation ‘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’. The Great Repeal 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’. The White Paper indicates that the Government would expect the Supreme Court to take a ‘sparing approach’ to departing from CJEU case law.
The White Paper leaves it open as to how courts should approach future CJEU case law, raising the possibility of a divergence of approach. It does, though, also state that after Brexit ‘our courts will continue to be able to look to the treaty provisions in interpreting EU laws that are preserved’. This would perhaps allow for a continued, purposive approach to interpretation, and for domestic courts to be steered towards taking a similar approach to the CJEU in future cases.
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