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23 May 2017

5: Great Repeal Bill – Meet the new boss, same as the old boss

In our last post we explained that the repeal of the European Communities Act 1972 (the ECA) would end the authority of EU Law in the UK. But, because this would leave a large hole in the UK’s statute book, the GRB would seek to preserve and carry over (‘transpose’) into UK law the full body of EU law not already implemented in national law.

This post looks at a different consequence of that repeal, namely the end of the supremacy of EU law.

At present, by virtue of the ECA, s2(4) and the provisions of the Treaties which it applies, EU law is to be accorded supremacy over UK statute law, ie anything in our law which is inconsistent with EU rights and obligations must be modified or construed to avoid that inconsistency (judgment of Lord Bridge in the seminal case of Factortame (No 2)). This led the ECA to be described as a ‘constitutional statute’ (Laws LJ in Thoburn v Sunderland CC, better known as the ‘metric martyrs’ case), which meant that the ECA could not be impliedly repealed, and that a subsequent Act, which didn’t expressly repeal the ECA, could not override incompatible EU laws.

It seems relatively clear that, even if ‘transposed’ EU legislation will still have authority in the UK (by virtue of the provision of the GRB which re-enacts it as domestic legislation), it will not retain entirely its previously-identified supremacy.

As the Supreme Court put it in Miller (para 80):

‘Upon the United Kingdom’s withdrawal from the European Union, EU law will cease to be a source of domestic law for the future (even if the Great Repeal Bill provides that some legal rules derived from it should remain in force or continue to apply to accrued rights and liabilities) … Even those legal rules derived from EU law and transposed into UK law by domestic legislation will have a different status. They will no longer be paramount, but will be open to domestic repeal or amendment in ways that may be inconsistent with EU law.’

The Government reflected this analysis in the GRB White Paper (para 2.19):

‘Our proposed approach is that, where a conflict arises between EU-derived law and new primary legislation passed by Parliament after our exit from the EU, then newer legislation will take precedence over the EU-derived law we have preserved. In this way, the Great Repeal Bill will end the general supremacy of EU law.’

However, note that EU-derived law’s supremacy will be preserved in respect of ‘pre-exit law’ (White Paper, para 2.20):

‘If, after exit, a conflict arises between two pre-exit laws, one of which is an EU-derived law and the other not, then the EU-derived law will continue to take precedence over the other pre-exit law. Any other approach would change the law and create uncertainty as to its meaning.’

The partial loss of this attribute of supremacy seems to mean that, for example, in the case of Workers’ Rights and equal pay (which example is specifically cited in the White Paper), the Government would be free to introduce, and Parliament to pass, new legislation which did not comply with the right to ‘equal pay’, but the interpretation of existing legislation (as being subject to and compatible with such rights) will be unchanged.

Unless, that is, the courts decided that the GRB (or other primary legislation passed to import EU laws or rights) was so significant as to justify granting to it the same status of a ‘constitutional statute’ (as was previously conferred on the ECA). If that was the case, then Parliament would have to expressly repeal that legislation (or elements of it) in order to pass new legislation which was incompatible with it. In effect, the position under the GRB would substantially mirror the position under the ECA.

Alternatively, the UK courts could go further still, granting ‘elevated’ or protected status to certain rights, eg the right to equal pay (whether granted under EU-derived legislation or otherwise). They could perhaps do so on the basis that the UK’s common law has developed to recognise inalienable ‘human rights’ during the course of its EU membership. What position would the Supreme Court take on such human rights (and its own powers) if a Conservative Government acted on its manifesto commitment to ‘consider’ the UK’s human rights legal framework, including the Human Rights Act, when the process of leaving the EU concludes’? Would the UK courts be willing to assume the mantle of the CJEU (or the US Supreme Court) and strike down legislation which is incompatible with such rights?

‘Meet the new boss, same as the old boss’ (The Who, Won’t Get Fooled Again)

Written with Aaron Nelson

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