What does the Great Repeal Bill mean for the UK's legal system?

Trevor Tayleur is an associate professor at the University of Law. Here, he offers AllAboutLaw his insights into what the Great Repeal Bill's white paper actually means in terms of the UK's legal system, as well as the Court of Justice of the European Union's continuing influence for some years to come. 

  • Last updated Aug 12, 2019 4:26:33 PM
  • by Jack J Collins, Editor of AllAboutLaw.co.uk
Placeholder
Image courtesy of Wikimedia Commons

The big four 

Tayleur points out that the main four points of the bill are as follows: 

  • The Bill will convert EU law as it exists at the time of Brexit into domestic UK law
  • The Bill will give ministers the Henry VIII power to adopt secondary legislation in special cases
  • The Bill may preserve supremacy of pre-Brexit EU law over pre-Brexit UK law
  • As EU-derived law is likely to remain in force in the UK for many years, the influence of the Court of Justice of the European Union (CJEU) will live on for some time

Taylor's full comment

“It seems that the government has taken note of concerns that the Great Repeal Bill should not grant it excessively wide Henry VIII powers to amend legislation. The Bill will convert EU law as it exists at the time of Brexit into domestic UK law.

“Where a piece of EU law would not make sense if it were transposed without amendment into the UK law, the Bill will give ministers the Henry VIII power to adopt secondary legislation to ‘correct’ it. For example, if an existing EU Regulation requires the UK government to consult with an EU institution, then the UK government will be able to correct the EU regulation when it is converted into UK law by removing the reference to the EU institution.

“The White Paper emphasises that the Bill will not give the UK government the power to make changes to policy by this method. Although much will depend on the wording of the Bill, if the UK government were to try to use the Henry VIII power to adopt secondary legislation to change policy rather than to correct the EU legislation, then it would be possible to challenge such secondary legislation by way of judicial review. The Bill will need very careful drafting to give the government the flexibility it needs in correcting EU law but at the same time protecting it from legal challenge.

“An interesting feature of the White Paper is the indication that the Bill may preserve the supremacy of pre-Brexit EU Law over pre-Brexit UK law.  The White Paper makes it clear that if a conflict arises between two pre-Brexit laws, one EU-derived and one not, then the EU-derived one will continue to take precedence.  It would then be open to Parliament to pass a new statute which would take precedence over the pre-Brexit EU derived law.

“When it comes to interpreting EU-derived UK law, decisions of the Court of Justice of the European Union (CJEU) will have the same binding status as decisions of the Supreme Court. All courts other than the Supreme Court will remain bound by decisions of the CJEU on such issues. While the Supreme Court will be able to depart from decisions of the CJEU, it is expected to use this power sparingly. As EU-derived law is likely to remain in force in the UK for many years, the influence of the CJEU will live on for some time.

“The White Paper also envisages that some EU Treaty provisions will still continue to have an effect. It gives as an example Article 157 TFEU which provides that men and women should receive equal pay for work of equal value. This means that if the UK’s Equality Act 2010 fell short of Article 157 TFEU as interpreted by the CJEU in some way, then it would still be possible for a victim of discrimination to rely directly on Article 157.”

More like this

  • Designer plagiarism: what does fast fashion have to answer for? Emma Finamore

    The fast fashion market value is higher than $35bn, but creating cheap garments on demand has given birth to a more sinister trend—ripping off other brands, from high end fashion houses to smaller designers. Where does artistic interpretation end, and plagiarism begin? 

  • Business law goes global: an introduction to the international legal services landscapeDavid Carnes

    Law, like business, has gone global. Although each jurisdiction enacts its own laws, in some cases the laws of various jurisdictions have been harmonised by treaty (intellectual property law is a prime example). In other cases, the laws of various jurisdictions must be taken into account before a transaction can take place. Conflicts among the laws of different jurisdictions are frequently in need of resolution.

  • The business of Fashion: what are the current legal trends? Simra Khadam | TheLondonLawStudent

    In this article, Simra (who you may know better as @theLondonLawStudent on Instagram) looks into the various trends and preoccupations of the fashion sector. 

  • Delays on government infrastructure projects: what’s the deal?David Carnes

    The UK has been grappling with a number of huge infrastructure projects across the country, including the HS2 railway and a number of hospital new builds. What are the implications when these projects get delayed?

  • Are law partnerships in decline? Jan Hill

    Although the partnership model remains dominant, change is in the air. We look at what this means for law firms in the UK and US

Recruiting? We can help