Brexit should shift power from Brussels to Westminster – not Whitehall

How much influence should the EU Court of Justice have in the UK once we leave the EU, the deputy president of the UK Supreme Court demanded to know last Wednesday. ‘It should be made plain in statute,’ Lady Hale told the Lords constitution committee, ‘what authority, or lack of authority, or weight or lack of weight, is to be given to decisions of the Court of Justice of the European Union (CJEU) after we have left, both in relation to matters that arose before we left and more importantly to matters after we leave.’

Hale, who is expected to become president of the Supreme Court in October, did not have long to wait for an answer. It will be down to you to decide, the government told her in the white paper it published on Thursday.

Clearly, the CJEU will have no jurisdiction in the UK after Brexit. The great repeal bill, as the government is continuing to call it, will not require UK courts to consider the CJEU’s case law.

But, ‘for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means,’ the white paper said. ‘To maximise certainty, therefore, the bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.’

As the government explained, this was needed to maximise legal certainty in areas as diverse as holiday pay entitlements for UK workers and the application of VAT. But ministers did not want to ‘fossilise’ past decisions of the CJEU. So ‘the bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court’.

And, just as the UK Supreme Court will depart from its previous decisions only in exceptional cases, the government would expect it to take a ‘similar, sparing approach’ to departing from CJEU case law. But, of course, parliament would be free to change the law in the normal way.

This sounds sensible enough, though we can infer from Hale’s question on Wednesday that the government did not trouble to consult the Supreme Court justices before inviting them to take on these new responsibilities. Hale and her colleagues might quite reasonably ask why a case should have to go all the way to the Supreme Court before some outdated or internally inconsistent Luxembourg decision can be swept aside. What about the appeal courts? Fortunately, the government said it was open to further suggestions on this.

As its name suggests, the great repeal bill will repeal the European Communities Act 1972 on the day the UK leaves the EU. To avoid leaving holes in the statute book, it will ‘convert’ existing EU law into domestic law at the same time. But the 1972 act is now regarded as a constitutional statute. Uniquely, it allows EU law supremacy: laws passed by parliament must be disapplied by UK courts if they are found to be inconsistent with EU law.

That supremacy will be ended by the new bill. Where a conflict arises between EU-derived law and new primary legislation passed by parliament after exit from the EU, the newer legislation will take precedence over the preserved EU-derived law.

That is fine. But what happens if, after Brexit, a conflict arises between two pre-exit laws, one of which is an EU-derived law and the other is not? In that case, the EU-derived law will continue to take precedence over the pre-exit law.

As the government says, ‘any other approach would change the law and create uncertainty as to its meaning’. But, in what I suspect will be a relatively small number of cases, there may be arguments over whether a UK law was introduced in response to an EU directive or merely because parliament thought it would be a good idea. So we will need to remember our history.

The EU Charter of Fundamental Rights will not be converted into UK law by the great repeal bill. Some of its provisions are covered by other treaties and, says the white paper, ‘there are no plans to withdraw from the European Convention on Human Rights’. But, it adds, case-law on the charter ‘will continue to be relevant’.

These proposals seem pretty logical and I suspect they will be seen as largely uncontentious. Where David Davis, the Brexit secretary, is more vulnerable – and where I suspect he is already planning tactical concessions – is his insistence that his bill’s Henry VIII clauses, allowing ministers to amend primary legislation, should follow existing parliamentary procedures rather than enhanced safeguards. Brexit should be a transfer of power from Brussels to Westminster (and Edinburgh, Cardiff and Belfast) – not to Whitehall.