What is in the White Paper?
The Great Repeal Bill has three main provisions:
- Repealing the 1972 European Communities Act. This will legally remove the UK from the EU, ending the UK’s participation in EU institutions and the oversight of the European Court of Justice in the UK.
- Converting EU law as it exists at the point the UK leaves the EU into UK law.
- Giving the government power to make secondary legislation both to ensure that the UK’s legal system functions after the UK leaves the EU and to reflect any agreement between the UK and the EU as part of the Article 50 negotiations.
The European Court of Justice
As a member of the EU, the UK is covered by decisions taken by the European Court of Justice (CJEU). After the UK leaves the EU, the UK’s Supreme Court will replace the CJEU as the country’s highest court.
Currently, judgments of the CJEU form part of the UK’s case law. The government’s approach is to maintain these judgments as part of UK case law and give them the status of Supreme Court judgments. This means that UK courts will still be bound by them, but they can be overturned by the UK Supreme Court, or by Acts of Parliament.
In some areas where devolved nations have powers, they are responsible for implementing EU-level frameworks, such as agricultural policies. When the UK leaves the EU, these EU-level frameworks will be brought into UK law. The UK government intends to discuss with devolved administrations to identify where UK-wide approaches are needed for these EU-level frameworks and where they are not needed. The government expects that more decision making powers will be passed to devolved administrations as a result.
Clashes of law
Currently, if there is a clash between UK law and EU law, EU law takes precedence. After the UK leaves the EU, the government is proposing the following hierarchy:
- If there is a clash between an EU-derived law and a law passed in the UK after Brexit, the post-Brexit UK law takes precedence
- If there is a clash between an EU-derived law and a UK law passed before Brexit, the EU-derived law takes precedence as is currently the case
What are the key issues for businesses?
Regulatory stability as we leave the EU
The government’s intention to convert EU legislation into UK law wherever possible should provide businesses with clarity and stability as the UK’s leaves the EU. While some may see the process as an opportunity to amend legislation, the priority in the short-term must be to give businesses as much certainty as possible. Keeping the regulations businesses follow stable on the day we leave the EU is therefore of paramount importance.
Future regulatory cooperation and divergence with the EU
The White Paper outlines the government’s plans to convert EU legislation into UK law at the point the UK leaves the EU. This means that, unless the UK and EU find a way to work together on their legal systems in the future, rules in the UK and EU could diverge afterwards. This could make it more difficult for UK companies to sell products and services into Europe, with different sets of rules for firms operating in the UK and in Europe. The Prime Minister’s Article 50 letter aims to maintain a fair and open trading environment between the UK and the EU and keeping regulatory systems similar will be crucial to achieving this.
Opportunities to amend legislation
Leaving the EU could provide opportunities to amend EU legislation which businesses currently find unhelpful. The short-term priority, however, must be stability. In the medium term, once the UK has left the EU, the Government will be able to explore targeted opportunities for regulatory flexibility. This will need to be done in close consultation with business, and should not be at the expense of access to international markets.
Clarity on the role of EU regulatory agencies
At the moment, many sectors come under the remit of one of the EU’s executive agencies. Depending on their role, these agencies can make, monitor, and enforce EU rules that give companies access to the EU market.
Businesses will want to know if the government intends for the UK to continue to participate in some or all of these agencies or if it intends to replace them partially or wholly with UK agencies, and if so, how these UK agencies would cooperate with their European partners to facilitate trade and mutual market access.
The CBI will be consulting our members on the White Paper to make sure the voice of business is heard. We would encourage all companies to engage with the Government on the Great Repeal Bill.
If you would like to know more about the CBI’s work on the Great Repeal Bill, contact Tiernan Kenny, Senior Policy Adviser firstname.lastname@example.org