Following yesterday's delivery of the Article 50 letter confirming the UK's intention to withdraw from the EU, today the government published its proposals for the Great Repeal Bill. It is somewhat ironically named, because while it will repeal the European Communities Act 1972, its main purpose is in fact to convert EU law into UK domestic legislation, in order to preserve the existing legal regime.
The white paper is careful to provide reassurance that current employment and equality protections will be maintained, confirming that "workers' rights that are enjoyed under EU law will continue to be available in UK law after we have left the EU. Where protections are provided by the EU treaties as a final ‘backstop’ – such as the right to rely on Article 157 of TFEU (equal pay) directly in court – they will also be preserved" and stating "all the protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU".
As regards the totemic restraint on the UK's sovereignty which is the European Court of Justice, the white paper indicates it will no longer have any role after the UK leaves the EU. That may be a matter still to be considered in negotiations concerning the future relationship with the EU. However, in any event, in line with the desire to keep current laws in place and avoid uncertainty, all existing ECJ case law relevant to the EU rules being transposed into UK legislation will continue to have binding force. Amusingly, given the legal uncertainties related to holiday pay, the government provides the specific example of the ECJ's rulings on this topic as an area where the law will not change.
The Government suggests that existing ECJ decisions will have the force of Supreme Court rulings, meaning that it is only an appeal to the Supreme Court or new UK legislation which could achieve change. The question of the transition issues which might arise, e.g. if cases have been referred to the ECJ but not decided, is not covered.
Interestingly, the white paper also indicates that where there is any conflict, existing EU law (as converted into UK law) will continue to have precedence over any separate existing UK law. This means that the present ability to challenge legislation on the basis it does not properly implement an EU directive may remain for a long period beyond the date of departure from the EU. And although the white paper confirms that UK courts will not be obliged to refer to future ECJ decisions after Brexit takes effect, we can envisage that any such decisions will be very influential.
Much has been said about achieving a quick and clean Brexit, but if the proposed terms of the Great Repeal Bill are anything to go by, the reality is not going to be straightforward.