Legislating for Brexit: EU decisions

Brexit and EU law

When the UK leaves the EU (expected to be 29 March 2019), the UK’s relationship with EU law, the EU Treaties, Court of Justice rulings and other elements of the EU acquis will change. Even if, during a transition period, the UK continues to apply the acquis, it will be as a third state outside the EU. This new, unprecedented relationship has yet to be defined, and transition will be the main subject of phase two of the Brexit negotiations.

The European Union (Withdrawal) Bill currently going through Parliament creates a new category of domestic law for the UK: ‘retained EU law’, which will consist of all of the converted EU law and preserved EU-related domestic law in force the day before exit day.[1]

Not much debate on EU decisions

The debate about retained EU law has been largely about EU regulations and directives, with Decisions - which include a large and diverse range of EU acts - not much discussed. Some types of EU decisions are ‘exempt’ from preservation under the Bill, yet EU foreign policy decisions are the basis for many important UK obligations, in sanctions against third states and individuals, and arms export controls, for example. While some of these obligations will be upheld under clause 8 of the EUW Bill and provisions in other Bills, it is possible that there will be gaps.

Types of EU decisions

EU decisions are a major category of EU acts – there are around 7,500.[2]

There are different types of EU decisions:

• Commission
• Council
• European Parliament (EP)
• Joint decisions of Commission/Council/EP and/or other EU institutions
• Intergovernmental
• Legislative
• Non-legislative
• Directly applicable
• Requiring further national implementation
• Directly effective
• No direct effect
• Implementing
• Delegated

They have different purposes and are adopted using different procedures, depending on their nature, Treaty base and subject matter.

Binding and directly applicable

Under Article 288 of the Treaty on the Functioning of the European Union (TFEU), decisions are “binding in their entirety”. If they are addressed to a specific State, person or company, they are binding only on them and directly applicable.

Adopted by qualified majority voting

Legislative decisions of the Council of the EU (comprising ministers from the Member States) or the EP and Council together are usually adopted using the Ordinary Legislative Procedure (OLP - co-decision) by a Qualified Majority Vote (QMV), or by the Council with the participation of the EP (consultation) under the special legislative procedure.

Justice and Home Affairs decisions and framework decisions

In the former Justice and Home Affairs ‘third pillar’ of the EU, decisions were taken by unanimity in sensitive areas such as immigration, asylum, border controls and cooperation in policing and criminal matters. Here, Member States cooperated ‘inter-governmentally’, without supranational law-making. The Lisbon Treaty incorporated JHA into Title V, the Area of Freedom, Security and Justice (AFSJ), in the Treaty on the Functioning of the EU. Since December 2009 AFSJ decisions have been taken mostly by QMV in the Council and with the European Parliament (the OLP). The UK has opt-out and opt-in arrangements in these areas in two Protocols (19 and 21) attached to the Treaties, so only certain provisions apply.

Lisbon also abolished framework decisions, which, like directives in the EC/EU ‘first pillar’, left the method of implementation to the Member States.

Common Foreign and Security Policy decisions

Non-legislative decisions of the Council usually implement the Common Foreign and Security Policy (CFSP). In Title V of the Treaty on European Union (TEU) on the EU’s external action and the CFSP, decisions are taken by the Council, while the Commission, EP and the Court of Justice of the EU (CJEU) have only a minor role.

Decisions on opening, signing and concluding external agreements

Non-legislative Council decisions are also made before the opening of EU treaty negotiations and on the signing and conclusion of international agreements. The text of the agreement may be attached to the decision relating to it. Votes are taken by QM or by unanimity, depending on the subject matter of the agreement.

Commission decisions on competition and state aid

Under Articles 106 and 108 TFEU the European Commission also addresses decisions to Member States on competition rules and state aid.

The European Union (Withdrawal) Bill

The European Union (Withdrawal) Bill (the EUW Bill) cuts off the source of EU law in the UK by repealing the European Communities Act 1972 (ECA) and removing the competence of EU institutions to legislate for the UK.

Clauses 2 and 3 of the EUW Bill provide for directly effective EU decisions to become part of the new body of ‘retained EU law’ in the UK if they apply here at the point of Brexit.

Certain non-legislative Common Foreign and Security Policy (CFSP) decisions, and decisions on the conclusion of external agreements, might not be retained or converted.

Clause 8 of the Bill allows the Government to make provisions to prevent or remedy any breaches of the UK’s international obligations that might arise from Brexit.

The Commons Library Briefing 8079, European Union (Withdrawal) Bill covers all the provisions in the Bill, and was published on 1 September 2017. A series of briefings has been published on the Commons Committee stage. These are all available on the Parliamentary Brexit website, Brexit: next steps in UK's withdrawal from the EU.

Other Brexit Bills

Other Bills have been announced or have already been introduced, which aim to adjust and amend law and policies which cannot be achieved by the EUW Bill.

International sanctions

A new Sanctions and Anti-Money Laundering Bill will provide for EU decisions retained under the EUW Bill to be amended by secondary legislation, in line with future Government policy and in order to comply with UN and other international obligations.

Trade

EU decisions on the conclusion of EU Free Trade Agreements (FTAs) with third countries will not be retained, but a new Trade Bill includes provisions for the implementation of new agreements with partner countries which correspond to the EU’s current FTAs and other trade agreements in place before Brexit.

Euratom

The Nuclear Safeguards Bill makes provision for nuclear safeguards after the UK leaves the European Atomic Energy Community (Euratom – which is a separate legal entity from the EU, but governed by the EU’s institutions). The Bill would allow the Government to make regulations for and implement international agreements on nuclear safeguarding. The new clause 76A of the Energy Act 2013, as inserted by clause 1 of this Bill, includes the first reference to ‘retained EU law’ outside the EUW Bill.

Customs

The Taxation (Cross-border Trade) Bill (the ‘Customs Bill’) would allow the Government to create a functioning customs, VAT and excise regime for the UK after Brexit. It also contains trade defence measures to protect UK industry from unfair competition from abroad and provisions on trade preferences which allow imports from developing countries to benefit from reduced customs duties.

More Bills to come

Other primary legislation was announced in the Queen’s Speech (on immigration, agriculture and fisheries) and others might yet be needed, with further secondary powers allowing the Government to adapt UK law to the post-Brexit situation and probably for a transition period.