European Union (Withdrawal) Bill: Briefing for Lords Stages

The European Union (Withdrawal) Bill completed its passage through the House of Commons on 17 January 2018 and is scheduled to have its second reading in the House of Lords over two days on 30 and 31 January 2018.

Clause 1 of the Bill seeks to repeal the European Communities Act 1972, which would cut off the ‘conduit pipe’ through which EU law flows into domestic law. This would take effect from exit day, which is defined in the Bill as 11pm on 29 March 2019. After exit day, EU law would no longer have supremacy over domestic law. Domestic courts would no longer be bound to follow the post-exit case law of the Court of Justice of the European Union (clause 6). To provide legal certainty and prevent gaps in the statute book, clauses 2 to 4 of the Bill would preserve EU-derived domestic legislation, direct EU legislation and certain directly effective EU rights and obligations in domestic law after exit day (subject to some exceptions set out in clause 5 and schedule 1). Critics of the Bill argue that some existing rights under EU law would not be preserved.

Ministers would be given time-limited delegated powers to modify retained EU law in order to: ‘correct’ provisions that would not function effectively or would be deficient after the UK leaves the EU (clause 7); to prevent or remedy breaches of the UK’s international obligations that might otherwise result from leaving the EU (clause 8); and to implement any withdrawal agreement made with the EU under Article 50 (clause 9). The Bill has been criticised for granting wide delegated powers, including the power to amend primary legislation through delegated legislation (so-called Henry VIII powers), without requiring sufficient parliamentary scrutiny.

The Bill also grants devolved authorities similar powers to the UK Government to amend retained EU law in devolved areas (clause 10). The devolution Acts currently prevent the devolved institutions from acting in a way that would be incompatible with EU law. The Bill would prevent them from acting in a way that would be incompatible with retained EU law (clause 11), but it also provides for the UK Government to ‘release’ policy areas from this restriction. The Government stated it intends to do so once agreement is reached with the devolved authorities regarding common UK frameworks in which the powers could operate. Clause 11 has proved highly contentious, with the Scottish and Welsh Governments stating they cannot recommend legislative consent be granted to the Bill in its current form. The UK Government committed to bringing amendments to clause 11 at report in the Commons. This did not happen but the UK Government has said that it will do so in the House of Lords.