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Legislating for withdrawal from the EU

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On 30 March, the government published the white paper Legislating for the United Kingdom’s withdrawal from the European Union, setting out its approach to converting existing EU legislation into UK law, beginning with the introduction of the Great Repeal Bill at the start of the next parliamentary session.

The main provisions of the Great Repeal Bill will:

·         repeal the European Communities Act 1972 and return power to UK institutions;

·         convert EU law as it stands at the moment of exit into UK law, before the UK leaves the EU; and

·         create powers to make secondary legislation enabling corrections to be made to the laws that would otherwise no longer operate appropriately after exit.

The government’s approach towards converting EU-derived law will be to:

  • convert directly-applicable EU regulations into UK law;
  • preserve all the laws made in the UK to implement EU obligations;
  • preserve the rights in the EU treaties that can be relied on directly in court by an individual; and
  • provide that historic CJEU case law be given the same binding status in UK courts as decisions of the Supreme Court. The white paper specifically mentions VAT as an area in which the CJEU has provided clarifications over the past four decades, and that failure to follow that case law would create new uncertainties about the application of VAT.

After exit, if 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. New UK legislation passed after exit will take precedence over the preserved EU-derived law. In particular, over the next two years, while Brexit negotiations are underway, the government will also introduce a number of further bills to ensure the UK is ready for withdrawal. This will include a customs bill, to establish a framework to implement a UK customs regime, as this cannot be achieved by simply incorporating EU law.

Where EU law is no longer effective post-Brexit (for instance it refers to an EU institution or relies on reciprocal arrangements with other member states), the Great Repeal Bill will create a power to rectify this through secondary legislation. This will be a wide power as it will apply to primary as well as secondary legislation, so the government is considering what constraints to impose, such as preventing the power from being used to make retrospective provision or impose taxation.

The government confirms that it has no plans to withdraw from the European Convention on Human Rights, but will not convert the EU Charter of Fundamental Rights into UK law.

The ‘Great Repeal Bill’ will be included in the Queen’s Speech, due to take place on 17 May.