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08th August 2017

A Brexit recipe for continuity and change

The Government’s draft Repeal Bill (The European (Withdrawal) Bill) published last month provides that from the point at which the UK exits the EU, the English Courts will be entirely freed from the law making authority of the ECJ and the EU legislatures - a line drawn in the sand.

Yes, decisions of the European Court of Justice ahead of the exit in areas of European law that are retained will not be deprived of their authority, but after the UK has left the EU, the Supreme Court may decide to depart from them in the same way as it can depart from its own prior decisions (something that it actually does very rarely). English Courts and Tribunals will be able to look at new ECJ decisions or legislation when they consider it appropriate to do so, but there will be no requirement for them to do so. So far, so clear - or is it?

Such simple propositions belie the complexities that lie beneath and it is those complexities and the need for clarity that have prompted the retiring President of the Supreme Court, Lord Neuberger, to now raise the possibility of a UK body being established in parallel to the ECJ to assist the English Courts with the interpretation of EU law in so far as it is relevant to the UK’s new situation. Are there echoes of the ECJ’s own procedures in the suggestion, given that the European Court is aided by Advocates General (who are called on for Opinions to assist the Judges in their decision making)? Such analogies are probably not especially helpful in the present context. The UK has to find its own recipe for continuity and change and that may very well demand new structures and approaches within the Courts system that shape it uniquely. Those who envision a return to a pre-EU legal world are going to be sorely disappointed. A new legal order beckons. As it stands, the draft Bill presents a patchwork quilt of a future legal landscape that will look and feel quite new and will need its own clear mapping.

Perhaps the most significant dimension of the draft Repeal Bill is the so called ‘Henry VIII’ provisions however. These provide sweeping delegated powers to the Government that it can use to amend primary legislation, both to make retained EU law operate effectively outside the EU and to fill in those spaces previously occupied by EU law which the UK decides not to retain. The prospect of such a major transfer of law making powers to the Executive (away from the Legislature) is highly significant and is bound to be vigorously debated when the Bill next comes back before Parliament in September. Of one thing we can be certain: There is ‘much that will pass between cup and lip’ before we know where we all stand.

Dominic Hopkins, Head of Disputes and Litigation: Associate member of the UK Constitutional Law Association.

For more information please contact Dominic Hopkins on 01604 233233 or click here to email Dominic.