After three months of speculation over how and when Brexit will be achieved, there have recently been two important announcements by Theresa May.
First, the UK Government intends to trigger Article 50 before the end of March 2017 - although this may be affected by the legal challenge arguing that Parliamentary approval is required to trigger Article 50. This is due to be heard by the Courts shortly.
Secondly, it has been announced that the Government intends to repeal the European Communities Act 1972 which currently provides for supremacy of EU law. This ‘Great Repeal Bill’ would convert all existing EU-derived law into domestic law allowing the UK to decide over time what laws it wishes to retain.
The Great Repeal Bill will be included in the next session of Parliament but, in any event, only come into effect on the date the UK leaves the EU – as otherwise, the UK would have found itself in breach of its treaty obligations. This presumably means that new EU legislation passed between now and Brexit would also be included in this exercise. Any Regulations will automatically be included but we have to wait to see what the Government’s attitude will be to new Directives.
It is perhaps unsurprising that the UK would seek to grandfather all existing legislation in this way. To approach the matter from the opposite perspective, i.e. that all EU legislation would fall away unless specifically retained, would have been administratively unworkable and could have led to important pieces of legislation being overlooked. However, there is little indication so far as to how the vast amounts of EU-derived legislation will be assessed, or by whom, or how long this process will take. Fears have also been expressed that the Great Repeal Bill will contain a Henry VIII clause (the term applied to a provision in legislation giving power to amend or repeal primary legislation by secondary legislation), which could ministers wide powers to make future modifications to laws without full parliamentary scrutiny.
The decision to grandfather existing EU-derived legislation is likely to cause few problems for provisions of EU law which relate to the way the UK should govern its domestic affairs or relationships between legal persons. For example, David Davis has asserted that existing employments rights will be unaffected. Indeed, continued adherence to such provisions may prove necessary to the extent that it is necessary to comply with EU standards in order to secure trading status. On the other hand, the position is not so straightforward for those rules which regulate the relationship between EU member states themselves. It would be open to the UK to declare that it will unilaterally preserve the existing position in relation to such EU rules (for example, in assuring EU Member States that it will adhere to the rules relating to free movement of goods as set out in the Mutual Recognition Regulation). However, this approach would be of limited value if the EU and/or its Member States do not give reciprocal confirmation. In addition, further thought will need to be given to the issues surrounding:
- legislation which relies on an EU Regulator or give jurisdiction to the CJEU;
- the numerous treaties which have been signed by the EU and are currently directly applicable in the UK by virtue of s2(1) of the European Communities Act; and
- the fact that references in EU laws to actions being taken within the EU will not automatically cover actions taken within the UK.
In the longer term, consideration will have to be given as to how to deal with amendments to and repeals of EU law post-Brexit. The UK’s approach will have to be balanced against the need to maintain minimum standards for trading purposes where applicable. Thought will need to be given to how the UK reacts to EU amendments to grandfathered law, and the extent to which the UK will need to make corresponding amendments to ensure equivalence.
Similar considerations will need to be applied as to the status of CJEU judgments particularly given the stated objective of ending the primacy of EU law in the UK. It might be expected that the UK courts after Brexit would continue to have regard to historic CJEU decisions dating from the time at which the UK was a part of the EU. However, it is easy to see the UK courts beginning to depart from CJEU precedent as time passes in the same way that historic House of Lords decisions are distinguished (as they grow older and less relevant to the modern world) until a point where they can be safely ignored. Moreover, although future decisions of the CJEU might be regarded as persuasive, it seems unlikely that the UK courts will consider themselves bound.