Theresa May has reiterated that where a conflict arises between two pre-exit laws, one of which is retained EU law and the other not, and if the retained EU law could have taken precedence over the other before exit, then it will continue to do so.
This statement was made in a letter to the House of Commons European Scrutiny Committee after the Committee highlighted what it saw as uncertainties over the power in the European Union (Withdrawal) Bill which gives UK courts the ability to disapply pre-Brexit UK legislation where it conflicts with EU law.
The initial letter from the European Scrutiny Committee highlighted uncertainties over the power, as it exists in the European Union (Withdrawal) Bill, for UK courts to disapply primary legislation. This is because, among other things:
- the principle of supremacy of EU law is not defined in the Bill
- the power to disapply primary legislation only applies to pre-exit enactments, not just to retained EU law
- the power to disapply primary legislation applies ‘so far as relevant’—this introduces a broad discretion
In response, May reiterated that ‘the laws and rules that we have now will, so far as possible, continue to apply’. This is with a view to maintaining continuity and, therefore, certainty. To this end, May reiterated what was said in the white paper ‘Legislating for the United Kingdom’s withdrawal from the European Union’: ‘The Bill would end the general supremacy of EU law by providing that new domestic legislation would take precedence over retained EU law.’
Importantly, May also underlined: ‘Where a conflict arises between two pre-exit laws, one of which is retained EU law and the other not, and if the retained EU law could have taken precedence over the other before exit, then it will continue to do so. This approach ensures continuity and certainty as to the meaning of existing law.’
The response letter highlights that this power is provided by clause 5(2) of the Bill.