In the coming years, the government is likely to want to bring forward primary legislation in areas where it previously relied (at least in part) on the EU to legislate. Continuity is generally thought to be good for regulated communities and bringing a degree of certainty to otherwise new and untested concepts undoubtedly makes a lot of practical sense. So, it is likely that, in at least some respects, the government will wish to maintain the law in the same way. However, UK primary legislation and EU legislation (supported by the interpretative powers of the CJEU) are very different beasts and some change in terminology, structure and drafting approach is likely, even where the intention is that the legal effect should remain the same. When faced with a Bill which looks very different from what businesses and lawyers are used to seeing, ministers and civil servants may seek to offer reassurance through public policy statements about continuity.

In such circumstances, it is superficially attractive to take comfort from such assurances – it makes sense that the people predominantly responsible for writing a Bill (and the policy upon which it is based) will be good guides as to the interpretation of the Act. However, reliance on such statements should be approached with caution. Although governments draft and bring forward most legislation, it is Parliament (and not government) which creates legislation and, whilst the latter can have significant influence over the former, there are risks with over-reliance on statements of policy intention rather than looking in detail at the terms of the legislation.

Put another way, how likely (or even legitimate) is it that the courts will rely on assurances from the Executive in determining the scope of Acts produced by the Legislature? And, if they do, can such statements justify the courts importing EU law concepts and jurisprudence into post- Brexit UK legislation in the name of continuity? This article looks at some of the difficulties with such reliance through the lens of the Procurement Act 2023.

Lawyers seeking to interpret UK legislation which succeeds EU legislation should be cautious about relying too heavily on statements of policy by government to the effect that “nothing is changing”, in particular in relation to primary legislation. Whilst that may turn out to be true in the majority of circumstances, some changes are likely in the course of this shift and the courts are not likely to start from the basis that such policy statements can be relied upon in all circumstances. Such expressions have a wellestablished (and limited) home in the process of statutory interpretation and there.