The Great Repeal Bill
A key element of Brexit is the removal of the principle of supremacy in EU Law. Once it is repealed and restated as national Law, EU derived law will no longer be based on an obligation to give effect to EU Law over and above UK/domestic Law.
The Miller case decided that by the majority that the European Communities Act was a conduit pipe by which EU law was grafted onto and into UK Law. It is not the originating source as such. It constituted EU Law as an independent and overriding source of domestic law.
Since 1972, European Union Law has become a fundamental and basic part of the legal system across most sectors areas. Existing common law UK statute and European Union Law are intimately intertwined and in some cases are mutually dependent and reinforcing. The proposed approach is to preserve the body of European Union Legislation in force on Brexit day and to thereafter amend it whether by parliamentary legislation or delegated legislation made under the Repeal Act.
In March 2017, the UK government published a White Paper on legislating for the United Kingdom’s withdrawal from the European Union. The UK government has published proposals for a so-called Great Repeal Bill, latterly called the Repeal Bill. The White Paper proposes that EU-derived Law will have primacy over earlier domestic Legislation Pre-Brexit. However, it will not have primacy over-post Brexit Legislation.
The Bill is in relatively short and simple, leaving most details to be completed by secondary legislation. Delegate powers to government and government departments to adopt EU Law will take effect on Brexit day.
Adjustment and Adaptation
References to EU Institutions will be replaced by a reference to UK institutions on Brexit day. There will be a general adaptation of enactments so as to refer to the equivalent institutions and bodies in United Kingdom post-Brexit.
The legislation provides powers to amend primary and secondary legislation so as to ensure that EU Law derived Law continues to function after Brexit. These “Henry VIII” powers to amend laws by executive Act are controversial because historically, they have been subject to abuse in different times in different places.
There is a parliamentary procedure to allow parliamentary scrutiny of delegated legislation by ministers. The Act provides for a negative and affirmative procedure by Parliament in relation to delegated legislation. Negative affirmation allows that the legislation may be annulled by a resolution of parliament. The much less common affirmative procedure requires a resolution of Parliament to confirm the delegated legislation.
Governmental entities will have powers to amend and adapt legislation as necessary. A good deal of European Union based law will require to be adjusted to ensure is still operable after Brexit day. The delegated powers seek to give ministers powers to adjust EU-derived laws so that it is effective after withdrawal.
Some legislation will be of necessity affected by the terms of the withdrawal agreement. For example, the fundamental Treaty freedoms contained in the treaty, but also the subject of directives and implementing regulations will be amended to take account of any new post-withdrawal relationship.
Given the likelihood of a Withdrawal agreement with the European Union, the legislation grants power to adjust EU legislation in accordance with the Withdrawal Agreement.
Courts and EU Law
After Brexit, EU Law will no longer have primacy or supremacy over UK domestic laws. UK Domestic courts will be no longer obliged to follow the European Union Courts. They will not be obliged to nor will they be able to refer questions of European Union law to the European Court of Justice.
EU based Law will have supremacy over the domestic law enacted before the UK leaves the EU. UK legislation enacted after Brexit will have primacy over all EU-derived Law. The decisions and opinions of the Court of Justice are likely to continue to be influential in the UK Courts after Brexit.
Judgements of the European Court pre-Brexit will have the same status as UK Supreme Court Judgments and are binding unless the Supreme court decides otherwise. Post-Brexit decisions of the Courts of Justice may be influential and relevant in interpreting EU derived law after Brexit. This may be particularly so in areas covered by a new agreement between the UK and EU.
Charter of Fundamental Right Not Re-Enacted
It is proposed that the EU Charter of Fundamental rights will not be converted into UK Law by the Great Repeal Bill. It covers a range of human rights and has the same status as the EU Treaty. This applies primarily to EU Institutions and states when acting within the scope of EU Law. It creates a slightly wider set of rights than the European Convention on Human Rights Legislation.
It is not proposed to give the same status in UK Law as the Human Rights Act gives the European Convention on Human Right. The charter arguably introduced new rights and principles. They will no longer be applicable post-Brexit
In theory, the Charter having the status of the Treaty requires the disapplication of any inconsistent domestic law. This is more powerful than the declaration of incompatibility under the Human Rights Act. There is a right of damages for breach of the Charter. In contrast, damages are discretionary under the European Convention on Human Rights. T
Courts may be required to take into account in the post-Brexit interpretation of decisions of European Court of Justice which rely on the Charter, that it is no longer to apply.
Devolved Legislatures
The devolved legislatures themselves will need an adaptation and repeal bill in far as EU Law applies to areas within their competence.
Many areas within EU competence are also within the competence and jurisdiction of the UK devolved legislatures and administrations. The UK Government White Paper indicates that where the EU Law framework has ensured a common UK approaches in areas that have been devolved, the government will seek to provide UK Legislative Frameworks to replace those under EU Law.
Agricultural and fisheries are mentioned as areas which are devolved, but which are and have been largely dealt with at EU level. In some delegated areas, the White Paper contemplates that Ministers of the devolved governments may be given powers to change EU derived laws within the area of the devolved powers. Relations between the UK and devolved administration in respect to withdrawal are dealt with through the joint ministerial subcommittee.
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