European Union (Withdrawal) Bill
So the Great Repeal Bill has now been published, all 66 pages of it, under the deceptively simple title, European Union (Withdrawal) Bill. The wording of this Bill appears to have been drafted with legal and political objectives in mind. It doesn’t always say what it first seems to!
After a short repeal provision, sections 2 -6 deal with the vital questions of how and to what extent EU law will remain part of the UK’s legal systems as well as the ways in which the UK courts are to treat such law.
Retention of EU Legislation
The starting point is to note that all existing EU derived domestic law and all direct EU legislation operative before Brexit will continue to have effect thereafter. In other words, what the Bill does is to instantaneously convert all EU law into national law and therefore preserve it in the UK legal systems. However it is preserved as at the date of Brexit and so EU developments in the law, at least through legislation, post-Brexit, will not be incorporated into the UK. EU legislation as incorporated will, therefore, be static. Reform will have to come via domestic legislation.
Supremacy of EU Law
The Bill goes on to deal with the politically sensitive topic of the supremacy of EU law. Consistent with the previous sections, EU law remains supreme over domestic law post Brexit in respect of the interpretation and disapplication of any law passed before Brexit. Beyond that, supremacy does not apply to laws passed post-Brexit except for a limited category of amendments.
The European Court
Since pre-existing EU law is to be retained and supremacy is to remain in respect of pre-Brexit laws, are the UK courts to be bound by the European Court? Politically controversial though this may be, it is a necessity in light of the earlier provisions.
Despite some circuitous wording, the Bill provides that all UK Courts except the UK Supreme Court and the Scottish High Court of Justiciary when sitting as an appeal court, are bound by the pre Brexit decisions of the European Court in respect of retained EU law. The UK courts are not bound by post-Brexit European Court decisions but are permitted to have regard to them. In other words, future European Court decisions will be persuasive but not binding. They will, therefore, likely still feature regularly in UK decisions.
So in summary, existing EU law will still apply post Brexit unless and until repealed. Most UK courts will continue to be bound by European Court decisions made before Brexit in relation to pre-Brexit law. The Supreme Court and High Court of Justiciary will still have regard to European Court decisions but need not be bound by them. Future European Court decisions, though not binding, may still have some influence. Over time the impact of European law will lessen as pre Brexit EU law is amended or repealed however that will be a slow process and, meantime, it is clear that EU law is not about to disappear from the UK anytime soon.