The White Paper on the Great Repeal Bill – Impact on Scotland

The UK Government's March 2017 White Paper, Legislating for the United Kingdom's withdrawal from the European Union, presented proposals addressing the domestic process required for the United Kingdom's departure from the European Union. The proposals will be given legislative effect in the Great Repeal Bill which is likely to be introduced in the UK Parliament before the Parliament's summer recess.

The White Paper proposes the repeal of the European Communities Act 1972 along with measures to ensure that all existing EU law will be transferred into UK law, so ensuring that there are no gaps in UK law when the UK leaves the EU.

The White Paper also makes proposals for ending the jurisdiction of the Court of Justice of the European Union (CJEU) in the UK after Brexit while at the same time ensuring that the previous case law of the CJEU continues to be applicable where EU related law remains on the UK statute book.

Given the likely volume of legislation required to ensure that the UK statute book is ready for the day the UK leaves the EU, the White Paper proposes giving UK Ministers, and where appropriate Ministers of the Devolved Administrations, so-called 'Henry VIII powers' enabling primary legislation to be amended or repealed by subordinate legislation. It has been suggested that the use of Henry VIII powers will make parliamentary scrutiny of the domestic Brexit process more challenging. It has also been suggested that monitoring the use of subordinate legislation to make substantive changes to any legislation ahead of Brexit will also be challenging.

The proposals in the White Paper are likely to have two notable impacts on the devolution settlement. Firstly, the UK Government has proposed that, whilst Brexit is likely to lead to a significant increase in the decision making power of each devolved administration, some powers in devolved policy areas are likely to be exercised at UK level following Brexit to ensure UK frameworks replace EU frameworks in relevant policy areas. The proposal to operate UK wide frameworks has generated a lot of interest following the triggering of Article 50 with a focus on how new UK frameworks will be agreed.

The question of whether the Great Repeal Bill, or any other related legislation will require legislative consent from the Devolved Legislatures has also been the subject of debate. Although UK and Scottish Government Ministers have discussed it, until the detail of the Great Repeal Bill is known, it is not clear whether and where legislative consent will be required.

ESO: Find further information in ESO on Scotland and Brexit after the referendum http://www.europeansources.info/advSearchLink?keyword=brexit%20after%20scotland%20&searchOption=all

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