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Thursday, 13 April 2017

The Brexit White Paper

The grandly-named Great Repeal Bill White Paper (officially entitled "Legislating for the United Kingdom's withdrawal from the European Union") was published by the government on 30 March. It sets out "the government’s proposals for ensuring a functioning statute book once we have left the EU". Which is just as well, because without the EU the statute book could have some big holes in it. Commercial and consumer law, company law, intellectual property law, construction and use of motor vehicles - the list goes on.
It covers plans for converting existing EU law - the acquis, as EU lawyers call it - into UK law, making any idea that Brexit is about regaining sovereignty illusory, at least in the medium term, and explains how "corrections" will be made to the statute book. It also deals with the repeal of the European Communities Act 1972, which is probably much the easiest part of the process.
The upshot is that business will find the legal landscape much the same after Brexit as before. The Great Repeal Bill will convert all EU laws that apply to the UK into domestic laws - the only practicable approach to the problem. It won't make substantive changes, except where some amendment is necessary to ensure that the law functions properly.
So, sovereignty consists of accepting the acquis and reserving the right to change once the UK has regained its "independence". What about the vexed question of the supremacy of the Court of Justice? The White Paper promises that historic decisions of the Court of Justice will be given the same status as decisions of the Supreme Court. That much is consistent with adopting the acquis into UK law, as any other approach would be to change the law. Lower courts could not overrule Court of Justice decisions, and the White Paper says that the government "expects" the Supreme Court to take a "sparing approach" to departing from existing case law - in much the same way as the Supremes deal with their own (and the House of Lords') existing case law. But to have the government tell us what it expects the judges to do feels very uncomfortable, especially when the judiciary has already been denounced as "enemies of the people" by the pro-Brexit press.
The necessary primary legislation will be introduced in the next Parliamentary session, and will take full effect the day the UK leaves the EU. The power to "correct" legislation by statutory instrument will have to come into operation before then. The government estimates that between 800 and 1,000 statutory instruments will be needed, and expresses its intention to strike the right balance between parliamentary scrutiny and speed. Notwithstanding that the whole purpose of Brexit was to restore Parliament's sovereignty and ensure that legislation be properly scrutinised in future, it is paradoxical that a compromise should be necessary - a compromise in which speed will almost certainly have to take precedence over scrutiny. At least the government promises that the power to make corrective secondary legislation will be limited in time.

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