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The European Union (Withdrawal) Bill: Retained EU law

Published Friday, November 10, 2017

This briefing paper has been prepared for day 2, scheduled to take place on 15 November, of the Committee Stage of the European Union (Withdrawal) Bill (EUW Bill) in the House of Commons.

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The EUW Bill creates a new category of domestic law for the United Kingdom: retained EU law. Retained EU law will consist of all of the converted EU law and preserved EU-related domestic law which was in force on the day before the UK left the EU.

  • Clause 2 provides for domestic primary and secondary legislation that give effect to EU law obligations to be retained; this body of law is to be known as ‘EU-derived domestic legislation’ (Section 2 of this briefing);
  • Clause 3 provides for the conversion of existing EU law that applies in the UK into domestic law; this body of law is to be known as ‘direct EU legislation’ (Section 3 of this briefing); and
  • Clause 4 would save rights and obligations in EU law that take effect through section 2(1) of the European Communities Act 1972 (ECA) and that are not converted by clause 3 (Section 4 of this briefing).

The Commons Library Briefing, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill, and was published on 1 September 2017.

The conversion of EU law and preservation of existing EU-related domestic legislation that would otherwise be lost on repeal of the ECA is intended to provide legal continuity during Brexit. Without these measures, there would be large gaps in the statute book in important areas of policy where the EU currently has competence, such as agriculture, environmental law and immigration.

Clauses 2, 3 and 4 of the EUW Bill convert and preserve a large amount of legislation. According to the EU’s Eur-lex website there were (in November 2017) over 20,000 EU (consolidated) laws in force (Section 6 of this briefing).

This body of law would become part of domestic law immediately after exit day, which is when the repeal of the ECA through clause 1 would take effect.

Clauses 2, 3 and 4 of the EUW Bill are also designed to lay the foundations for the post-Brexit statute book by creating new legal concepts. The concepts proposed by the Government in clauses 2, 3 and 4 - “retained EU law”, “EU-derived domestic legislation” and “direct EU legislation” - re-imagine familiar legal terminology in order to capture a body of law which will undergo significant change and operate under a new constitutional framework. These novel concepts would have important consequences for the way in which the UK’s legal systems operate.

These new concepts will also prove instrumental to the Government’s strategy in legislating for Brexit. Many, if not all, of the Bills designed to prepare for Brexit are likely to contain provisions and powers that make reference to EU retained law. For example, the Trade Bill, introduced to the House of Commons on 7 November 2017 contains a power to amend retained EU law by secondary legislation in order to implement international trade agreements (clause 2(6)).

Clauses 2, 3 and 4 also underpin the whole scheme of this Bill. Clauses 5 and 6 provide instructions to the courts on the status and interpretation of retained EU law. Clause 7, 8 and 9 contain powers to change retained EU law for specific purposes. Clause 11 provides that retained EU law will replace EU law as a limit on devolved competence after exit day.

Legal experts and parliamentary committees have raised concerns over the clarity and status of retained EU law. For example, it has been noted that it is not clear to what extent clause 4 converts EU law that does not contain directly enforceable rights. Sir Stephen Laws QC, former First Parliamentary Counsel, has suggested that these clauses depend upon a “suppressed proposition” that these laws continue to have effect “as if the UK were still a Member State”.

In relation to the status of retained law, it is not clear whether converted direct EU legislation (clause 3) and saved EU law rights (clause 4) are primary legislation, secondary legislation or something else entirely. This could have implications for how retained EU law is amended, and how it is interpreted in the courts (Section 5 of this briefing).

Converting EU law and preserving existing EU-related domestic legislation is designed to provide legal continuity, but it would also enable Parliament to amend this body of law before exit day. The Government has stated that retained EU law will be subject to a raft of changes through secondary legislation in order to ensure that it operates effectively after exit day. For example, a significant amount of the legislation converted and preserved by the EUW Bill will contain references to European Union institutions which may need to be removed for the legislation to operate effectively in the UK after exit day.

The Brexit Bills and any legislation required to implement the withdrawal agreement could also make changes to retained EU law before exit day.

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