So the “BIG POKER GAME STARTS”

The media frenzy has started with claim and counter proposals, that is then twisted with media speculation. I am surprised nobody has played the trump card yet – give it time – I am sure someone will play the joker!

The Government have published their Great Repeal Bill White Paper, which explains how the UK Government intends to manage legislation regarding withdrawal from the European Union.

The Great Repeal Bill will repeal the European Communities Act 1972 on the day we leave the EU the principal piece of legislation that gives effect to EU law in the UK.

To achieve a stable transition on leaving the UK, the Government intends to convert the body of existing EU legislation into UK domestic law. This means that the same rules and laws will apply after we leave the EU as they did before.

Parliament will then be able to decide upon which elements of that law to keep, amend or repeal once the UK has left the EU.

The Bill intends to provide the UK Government with the necessary power to correct or remove legislation that would otherwise not function properly once the UK has left EU.

However, converting EU legislation into UK law is not enough, as some EU law will not achieve its desired legal effect and the Government must act to make sure domestic law continues to function once the UK leaves the EU.

Not all of these necessary changes will be incorporated into the Great Repeal Bill itself, this is due to time constraints and some of the changes not being best suited to inclusion in primary legislation.

Some changes will be required for devolved law and it would be more appropriate that these changes are made by devolved institutions as the Bill will create power to correct legislation where necessary to rectify any problems that arise as a consequence of leaving the EU.

Three things the Great Repeal Bill will do:

1. Repeal the European Communities Act 1972 and return power to UK institutions;
2. Convert EU law as is stands at the moment of exit into UK law before we leave the EU, allowing businesses to continue operating knowing the rules have not significantly changed overnight;
3. Create powers to make secondary legislation.

The Great Repeal Bill will convert the following into UK law:

• Directly applicable EU laws, EU Regulations;
• Rights in the EU Treaties that can be relied on directly in court by an individual;
• Make provisions that historic Court of Justice of the European Union (CJEU) case law be given the same binding or precedent status in our courts as decisions of our own Supreme Court.

The Great Repeal Bill will not aim to make major changes to policy or establish new legal frameworks in the UK beyond those that are necessary to make sure the law continues to function properly from the day we leave the EU.

Therefore the Government will introduce a number of further Bills over the course of the next two years so we are prepared for withdrawal from the European Union.

The House of Lords European Union Committee published its report “Brexit: environment and climate change” the wide-ranging report gives a valuable overview of policy and legal challenges that will emerge over the next few years. 

It notes:

Policy stability will be critical during the process of, and in the immediate aftermath of, withdrawing from the EU to avoid the emergence of legislative gaps and avoidable uncertainties in the sphere of environmental protection.

Once the UK has withdrawn from the EU, environment legislation and policy will be more vulnerable to short term and less predictable changes at a domestic level.

New rules in environmental court cases will have a chilling effect on the UK justice system, making it harder to challenge the UK government over cancer-causing air pollution.

The planned change in rules will increase cost uncertainty for individuals and campaigners going to court to protect the environment.

Judges will then have the ability to increase or decrease cost caps.

This introduction of uncertainty is contrary to the Aarhus Convention, an access to justice law which the UK has signed.

These new plans make it even harder for people to bring environmental cases, by increasing uncertainty around costs and making the procedure ever more complex.

There have been calls for Prime Minister Theresa May to attach "sunset clauses" to European Unions laws when they are written into UK law that would effectively set a use by date on EU-derived legislation. If implemented they would force civil servants to review, reform or scrap the legislation in a given time frame and any legislation which is not reviewed by this point would then automatically become void past the sunset date.

The Chief Economist at the Institute for Economic Affairs, Julian Jessop, is one of those calling for the attachment of "sunset clauses" as he believes that time limits would put the burden on civil servants to ensure they "review legislation properly" after the UK leaves the EU.

He commented:Writing in sunset clauses would be more credible because it puts the onus on people to justify these regulations rather than just staying by default.

Brexit should provide an opportunity to reduce the burden of regulation on UK households and firms alike.''

A recent House of Commons report stated that as part of the Great Repeal Bill ministers will have to import up to 19,000 pieces of EU legislation into UK law. Legislation that covers a broad range of areas including trade, financial services, agriculture and the environment to name but a few.

The Great Repeal Bill White Paper made no mention of any 'sunset' dates being implemented into EU-derived legislation.

However, if this approach were to be taken there is the potential for it to have a drastic impact on UK legislation if large areas of law are not reviewed in time and then cease to have effect past a given date and may leave a scenario where the UK is left with legislative gaps.

Now where did I leave that pack of cards (Back to poker school for me)