David Davis gave a statement to the House of Commons earlier today on how the Government plans to legislate for the UK's withdrawal from the EU. His statement was accompanied by the release of a white paper, setting out the process in more detail. Mr Davis stressed the intention to give businesses, workers, investors and consumers the maximum possible certainty as we leave the EU.
The Great Repeal Bill (the Bill) will be introduced at the start of the next parliamentary session. It will address three main areas.
Repeal of the European Communities Act 1972
The European Communities Act 1972 (the Act) gives effect in UK law to the EU treaties, incorporates EU law into UK law and requires UK courts to follow decisions of the European Court of Justice (ECJ). It therefore needs to be repealed, which will take effect on the day we leave the EU.
Conversion of existing EU law into UK law
Repealing the Act will leave large holes in UK law, for example because EU Regulations are directly applicable here and do not require any implementing legislation. They will cease to have effect in the UK once the Act is repealed. In addition, all of the secondary legislation made under the Act will fall away (for example, where Directives have been implemented in the UK by way of statutory instruments). Therefore provision needs to be made to fill those gaps. The Bill will convert EU law as it stands at the moment of exit into UK law so the rules do not change overnight. It will then be up to Parliament and the devolved legislatures to amend, repeal or improve any piece of EU law at the appropriate time. The white paper confirms that EU law will not be copied out into UK law regulation by regulation.
The Bill will also state that any question as to the meaning of EU-derived law will be decided by the UK courts by reference to ECJ case law existing at the date we leave the EU. Historic ECJ case law will be given the same precedent status in UK courts as decisions of the UK Supreme Court – so the Supreme Court will be able to depart from it "when it appears right to do so" - and the courts will be able to look to treaty provisions to interpret EU laws that are preserved. However, the ECJ will not have any role in interpreting new law, and UK courts will not have to consider previous ECJ case law. Parliament – or the devolved legislatures if appropriate - will be able to change the law (and overturn case law) if it wishes.
Where a conflict arises between EU-derived law and new primary legislation passed by Parliament after our exit, the new legislation will take precedence so that the supremacy of EU law is ended.
Creation of powers to correct laws
The Bill will create powers to make secondary legislation, enabling corrections to be made to laws that would otherwise not operate appropriately once we leave the EU. Examples include where there are references in legislation to EU law, the UK's EU obligations or an EU body. The power to correct will allow the Government to amend converted laws to reflect our position, either by replacing the reference with something else or removing the relevant requirement completely. Constraints will be placed on the use of this delegated power and it will not apply, for example, to policy changes. It is estimated that 800 to 1,000 statutory instruments will be needed in order to correct the law. This power will come into force on Royal Assent so that corrections can be made before we leave the EU. It will be time-limited.
The white paper also deals with some miscellaneous matters, stating for example that if the UK leaves the EU with no trade deal in place, the Great Repeal Bill will still apply and will create a complete and functioning statute book. It states that the Bill will not aim to make major changes to policy or establish new legal frameworks in the UK beyond those necessary to ensure the law continues to function properly. It also notes that other separate legislation will need to be introduced, dealing with matters such as a customs regime and immigration. Finally, it addresses interaction with the devolution settlements. In his Commons statement, Mr Davis stated that no powers currently exercised by the devolved administrations will be taken away and he expects there to be a significant increase in their powers after we leave the EU.
The White Paper notes that a balance will have to be struck between the importance of scrutiny and the speed of the process since there is much to be done in the next two years. While it is not a consultation paper, comments are invited on the white paper and should be sent to: firstname.lastname@example.org.
 House of Lords Practice Statement 1966, adopted by the Supreme Court 2010