The Government's negotiating objectives: the White Paper Contents

2Certainty and clarity

Objective 1: Providing certainty and clarity

The “Great Repeal Bill”

10.The Government has announced its intention to introduce a “Great Repeal Bill” to provide legal certainty for the UK on leaving the EU. The Bill will be designed to repeal the European Communities Act 1972 and convert the acquis of existing EU law into domestic law. Accordingly, on the day after the UK leaves the EU, the same legislation will apply as applied before exit. The UK Parliament and, where appropriate the devolved legislatures, will then be able to determine which legislation they wish to keep, amend or repeal. The Bill is also expected to delegate powers to Ministers to amend “laws that would otherwise not function sensibly once we have left the EU” by means of secondary legislation.6

11.In its report on The “Great Repeal Bill” and Delegated Powers, the House of Lords Select Committee on the Constitution noted that the UK Government and Parliament faced a unique challenge in transposing the full body of EU law into domestic law, not least because “the body of EU law is found in a number of different places”. Some EU law underpins existing UK legislation (for example EU directives which must be converted into domestic law) and some is directly applicable in the UK (for example EU regulations that apply directly in the UK under the terms of the European Communities Act 1972). The Select Committee on the Constitution noted that:

Yet further elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union, regulatory rulings by EU agencies, or in the interpretation of our own courts.7

The Lords Committee added that the task was complicated by the fact that in many areas, the final shape of the law will depend on the outcome of negotiations on the UK’s exit, but preparations will have to be made in time to come into force on the day that the UK leaves the EU.8

12.The “Great Repeal Bill” itself will not be a straightforward undertaking and will raise a number of important constitutional and legal questions, in particular:

13.The nature of the legislative powers that will be delegated and the appropriateness of Parliamentary procedures for their consideration are the subject of an inquiry launched by the House of Commons Procedure Committee.10

14.In our First Report, we urged the Government to publish the “Great Repeal Bill” in draft to enable the “fullest scrutiny” of its provisions to take place before formal consideration took place in Parliament.11 This was merited “given the significance of the repatriation of legislative competences to the UK for the constitutional makeup of the UK [and the] implications for the devolution settlement”. The Secretary of State told us that the White Paper on the Bill had been delayed by the elections in Northern Ireland (and the Government’s desire to inform the Northern Ireland Executive in advance of publication), but would be published soon.12

Transposition of regulations into domestic law

15.The question of how EU regulations will be transposed into domestic law may raise particular questions where those regulations specify enforcement or certification by EU regulatory bodies. In respect of product certification by a regulatory agency, on leaving the EU, the UK would need to determine whether it wished to continue to follow the decisions of an EU agency or set up its own certification processes. A UK equivalent agency may require arrangements for mutual recognition of decisions with its EU counterpart. In respect of enforcement, where EU regulations specify enforcement by the European Commission or EU regulatory agency, the UK would need to determine to whom the enforcement power was given.

16.There may be other areas where legal drafting will need to be changed to bring it into line with the body of domestic law.13 The Secretary of State for Environment, Food and Rural Affairs, Rt Hon Andrea Leadsom MP, has said that, in respect of her Department’s remit,

We think that in the region of about two-thirds of the legislation that we are intending to bring into UK law will be able to be rolled forward with just some technical changes, so roughly a third won’t, which means that obviously there will be work to do to ensure that we can make those measures continue to work once we leave the EU.14

17.We will examine the Government’s plans for converting the acquis into domestic law by taking evidence on the “Great Repeal Bill” White Paper when it is published. This will be a complex task for both the Government and Parliament and will need appropriate resource and time to be allocated. We intend to invite Ministers from departments other than the Department for Exiting the European Union to give evidence. We note that the Secretary of State for Environment, Food and Rural Affairs has acknowledged the scale of the technical challenge ahead. The importance and complexity of ensuring legal certainty in the UK on the day after Brexit must not be underestimated.

Delegation of powers

18.The Government will not only have a significant body of legislation to incorporate into domestic law before the UK exits the EU, but will also need to make separate legislative provision in the numerous areas where the law will either need to be changed to ensure that it works in the context of domestic law or where some legislative or regulatory divergence is required. The White Paper notes that legislation to give effect to the UK’s withdrawal will not be limited to the “Great Repeal Bill” but will also include separate bills, including on immigration and customs. The extent to which new primary legislation or powers to be delegated under the “Great Repeal Bill” are used to construct the post-Brexit legal framework will be a matter for Parliament to consider in its scrutiny of the Bill.

19.The “Great Repeal Bill” is also expected to include provisions for delegating powers to Ministers to make changes to legislation transposed from EU law to take account of the progress of negotiations. The Government has said that this will give them “the flexibility to take account of the negotiations with the EU as they proceed”.15

20.The House of Lords Select Committee on the Constitution noted that:

The challenge facing Parliament—and on which we focus in this report—is how to grant the Government relatively wide delegated powers for the purpose of converting EU law into UK law, while ensuring that they cannot also be used simply to implement new policies desired by the Government in areas which were formerly within EU competence.16

That Committee recommended that a provision be placed on the face of the Bill to limit delegated powers to be used only

So far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework; and

So far as necessary to implement the result of the UK’s negotiations with the EU.

21.The Secretary of State told us before Christmas that any material changes would be done through primary legislation rather than through delegated legislation.17 He reiterated in evidence this month that:

The strategy is to deal with the repeal of the European Communities Act 1972 and the translation of the acquis communautaire into English law in the Great Repeal Bill. [ … ] The second phase will be dealing with substantive matters in primary legislation, because that is my view as to how it should be done, and nonsubstantive matters or less substantive matters in secondary legislation. There will be a number of major bills.18

22.The “Great Repeal Bill” is expected to entail the delegation of very significant powers to Ministers, whether of the UK or devolved governments, to bring forward legislation to ensure that the body of EU law being transposed into domestic law both fits the UK’s legal framework and keeps pace with the UK’s negotiations on its exit deal and its future relationship with the EU. In our scrutiny of the Bill, while understanding the pressure facing Ministers, we will want to be confident that the delegation of powers is sufficient only for the limited job required and does not become a means of passing significant new legislation without the higher level of scrutiny that primary legislation requires.

23.A major justification for Brexit was to enhance Parliamentary sovereignty. Leaving the European Union should not therefore result in a shift in power from Parliament to the Executive. The Committee believes it is essential that Parliament plays a full role in all Brexit-related legislation including the “Great Repeal Bill”.

Impact on the Devolution Settlement

24.Under the Sewel Convention, the Government does not normally invite the UK Parliament to legislate on devolved matters or the scope of devolved powers without the assent of the devolved legislature concerned.19 The Sewel Convention is given a statutory basis by the Scotland Act 201620 and in the Wales Act 2017.21 Assent is signified by means of a legislative consent motion.

25.The Supreme Court has noted that “Over time, devolved legislatures have passed legislative consent motions not only when the UK Parliament has legislated on matters which fall within the legislative competence of a devolved legislature, but also when the UK Parliament has enacted provisions that directly alter the legislative competence of a devolved legislature or amend the executive competence of devolved administrations”.22 The way that the Sewel Convention has operated in practice establishes that legislative consent motions will probably be required in respect of the “Great Repeal Bill” were it to remove from a devolved legislature the requirement to abide by EU law (with the effect that legislative competence is changed); change EU law that currently comprises part of the devolved body of law; or take back into UK legislative competence any EU competence that relates to a devolved matter. We consider the implications of the “Great Repeal Bill” for the devolution settlements further in Chapter 3.

Court of Justice of the European Union case law

26.In its bid to provide “legal certainty”, the “Great Repeal Bill” will be designed to incorporate the acquis communautaire into domestic law. The acquis is considered to include decisions of the Court of Justice of the European Union (CJEU).

27.After Brexit, a large quantity of UK primary and secondary legislation will still have arisen from EU law. In some areas, the UK Parliament may, in time, legislate in a manner that results in domestic law diverging decisively from EU law. In others, the UK may seek to maintain a high level of regulatory compliance in the interests either of maintaining trade or ensuring continued participation in EU programmes. In any case, where domestic law is still derived from EU law, even after Brexit, UK courts are likely to continue to refer to CJEU judgments in their interpretation of that legislation. The White Paper indicated that “in general the Government also believes that the preserved law should continue to be interpreted in the same way as it is at the moment”.

28.David Jones MP, Minister of State, Department for Exiting the European Union, responding specifically to a question about the status in the UK of case law and judgments of the CJEU after the UK had left the EU stated:

I wish to make it clear that the starting position of the Government is that EU-derived law, from whatever quarter, will be transferred into United Kingdom law in full at the point of exit.23

29.In the light of the Government’s stated intention to preserve EU law in the UK until the UK Parliament decided to change it, Professor Kenneth Armstrong, Professor of European Law at the University of Cambridge, questioned what continuing role the CJEU would play:

To what extent should UK courts follow or at least track developments in the interpretation of EU rules by EU courts to maintain consistency? Should UK judges continue to follow changes in the interpretation of EU rules unless and until ministers decide to express a view on an interpretation they do or do not wish to see reflected in UK law?24

30.Once the European Communities Act 1972 is repealed, UK courts will no longer be bound by decisions of the Court of Justice of the European Union (CJEU). However, the extent to which UK courts continue to take account of CJEU case law remains to be decided.

Vote on the final deal

31.The White Paper notes that the final deal agreed between the UK and the EU will be put to a vote in both Houses of Parliament.25 In our First Report, we called for Parliament to have a vote on any final deal and sought clarification that “the timetable for this vote will allow for proper consideration of any deal that is negotiated”.26

32.In its response to our Report, the Department stated that the Government would “bring forward a motion on the final agreement to be approved by both Houses of Parliament before it is concluded, and [ … ] intends that this will happen before the European Parliament debates and votes on the final agreement”.27 The response continued that “The Government expects that this vote will cover both the withdrawal agreement and the future relationship with the EU”.

33.We welcome the Secretary of State’s assurance that Parliament will have a vote on any final deal reached under Article 50 and any agreement on the UK’s future relationship with the EU before the European Parliament votes on it, but we also believe that Parliament must have a vote in the event that there is ‘no deal’. Leaving the EU without a future trade deal and in doing so defaulting to World Trade Organisation (WTO) rules is no less an important decision for the UK’s economic future than the terms of any future Free Trade Agreement between the UK and the EU. It is therefore essential that such a step is not taken without Parliament having a vote on the matter.

Objective 2: Taking control of our own laws

34.The Prime Minister made clear that one of her “red lines” in negotiations would be to end the jurisdiction of the CJEU over the UK.28 This position was underlined in the White Paper which stated that:

The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.29 [ … ]

The Court of Justice of the European Union (CJEU) is the EU’s ultimate arbiter on matters of EU law. As a supranational court, it aims to provide both consistent interpretation and enforcement of EU law across all 28 Member States and a clear process for dispute resolution when disagreements arise. The CJEU is amongst the most powerful of supranational courts due to the principles and direct effect in EU law. We will bring an end to the jurisdiction of the CJEU in the UK.30

35.We note in paragraph 30 above, the extent to which the UK courts may have to continue to take account of CJEU case law in certain areas. However, this does not affect the White Paper’s clear objective of removing the primacy and direct effect of EU law, interpreted and enforced by the CJEU.

Dispute resolution procedures

36.Although the White Paper envisages ending the jurisdiction of the CJEU in the UK, it does acknowledge that dispute resolution mechanisms will be required in respect of any future relationship agreed between the UK and the EU. Dispute resolution procedures would be required in respect of future trading arrangements and cooperation in certain EU projects, including participation in aspects of Justice and Home Affairs policies, including Europol and provisions for data-sharing. These are discussed further below. Mechanisms would:

Ensure that all parties share a single understanding of an agreement, both in terms of interpretation and application. These mechanisms can also ensure uniform and fair enforcement of agreements.31

37.The UK is already party to dispute resolution mechanisms in relation to a number of international agreements. The White Paper notes that “unlike decisions made by the CJEU, dispute resolution in these agreements does not have direct effect in UK law”.32 The dispute resolution mechanism or mechanisms that will apply to the UK’s future relationship with the EU “must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens”.33

38.There are examples of dispute resolution mechanisms that do require acceptance of CJEU jurisdiction, such as the Deep Association Agreement with Ukraine and Denmark’s Agreement to participate (as if it were a third country) in Europol. However, Professor Steve Peers, University of Essex, told us that it would be unusual for the EU to insist on a third country (ie. the UK, in an agreement on a future UK–EU relationship) accepting the jurisdiction of the CJEU. It was more common for the agreement to provide that “the two sides keep each other’s case law under review [ … ] if there is divergence, there is a discussion about how to try to resolve it”.34 He noted that this could lead to problems at a later point. Citing the example of data protection, he argued that, notwithstanding any agreement reached on regulatory equivalence between the UK and the EU, this agreement could be open to challenge in the CJEU by EU institutions, a Member State or an individual.35

39.Allowing for the Prime Minister’s “red line” on CJEU jurisdiction, David Anderson QC, the Government’s former Independent Adviser on Terrorism Legislation, told us that:

I would have thought the genius of our diplomats and lawyers ought to be capable of negotiating something that could be swallowed, even if in practice it is likely to mean a high degree of ECJ influence over the development of our own law.36

40.The Secretary of State told us that the UK may look to agree different models for arbitration or dispute resolution with the EU covering different areas, such as trade and Justice and Home Affairs cooperation. In terms of the model adopted he told us that the CJEU would not be the appropriate body:

If we did a deal with the United States, we would not have the Supreme Court of the United States be the arbitration mechanism. We will have to design the mechanism to be appropriate.37 [ … ]

It does not really matter whether it is the ECJ or any other domestic court for a trade partner. We would not look to a system that was effectively subordinate or even the same as their own domestic court. We would look for an independent system, so independence is the key issue.38

41.Ending the jurisdiction of the CJEU over the UK is one of the Prime Minister’s “red lines” in negotiations. The European Communities Act 1972, which the Government is planning to repeal, provides that rulings of the CJEU are binding on UK courts. Whilst the UK is likely to move away from the jurisdiction of the CJEU on exiting the EU, the terms of the UK’s future relationship with the EU may entail continuing regulatory conformity in certain areas, such as certain product standards or data protection. Where regulatory conformity provides the basis of the continuing relationship, this may necessitate agreeing dispute resolution procedures, in trade and other areas, which require continuing account to be taken by UK courts of CJEU case law, just as in any similar agreement with another country the UK courts would take account of the other country’s rulings.

7 House of Lords Committee on the Constitution, Ninth Report of Session 2016–17, The ‘Great Repeal Bill’ and delegated powers, HL Paper 123, Summary

8 Ibid

9 Legislating for Brexit: the Great Repeal Bill, House of Commons Library Briefing Paper No. 7793, 23 February 2017, Summary.

11 First Report of Session 2016–17, HC 815, para 71

12 Q1500

13 Legislating for Brexit: the Great Repeal Bill, House of Commons Library Briefing Paper No. 7793, 23 February 2017, Section 3.4

16 House of Lords Committee on the Constitution, The ‘Great Repeal Bill’ and delegated powers, HL Paper 123

17 Qq483–484

18 Q1501

19 House of Commons Library, The Sewel Convention, Standard Note SN2084, 25 November 2005

20 Scotland Act 2016, section 2

21 Government of Wales Act 2017, section 107 as inserted by the Wales Act 2016

22 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, para 140

23 HC Deb, 7 November 2016, col 1363

24 Professor Kenneth Armstrong, On your marks, get set LEAVE! The technical challenge of the Great Repeal Bill, LSE Brexit Blog, October 2016

34 Q1155

35 Q1155

36 Q1154

37 Q1498

38 Q1499

3 April 2017