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The European Union (Withdrawal) Bill moves to the House of Lords

Andrew Sheftel
January 30, 2018

Posted in UK and EU legal framework

The European Union (Withdrawal) Bill will this week move to the House of Lords where it is expected to face significant opposition.

In advance of the planned debate, a report by the House of Lords Constitutional Committee has raised a number of objections and suggested that substantial changes are required.  These include both questions of substance and of drafting. As also raised in debates in the House of Commons, the report includes criticism of the breadth of Henry VIII powers contained in the Bill and of how the Bill will impact upon devolution settlements.

Further, the committee claims that the drafting of the Bill risks undermining legal certainty having regard to the definition of ‘retained EU law’. As the report points out, ‘retained EU law’ will take many forms – including secondary legislation made under the ECA that implements EU directives or other EU obligations; provisions of secondary legislation made under other primary legislation that themselves implement EU directives or other EU obligations;  provisions in Acts of the UK Parliament that implement EU directives or other EU obligations; and provisions in devolved primary and secondary legislation that implement EU directives or other EU obligations – and it is not always clear whether something will fall within the definition of retained EU law.

In addition, the report raises questions as to the status of retained EU law, noting that this is unclear under the Bill as presently drafted. In this regard, the report recommends that “all retained direct EU law should be treated as domestic primary legislation for all purposes, including for the purpose of determining whether it is subject to the exercise of delegated powers contained in legislation other than this Bill”.

The report also notes that the implications of the Bill for reciprocal rights remain uncertain, as such rights will inevitably be linked to the whatever relationship exists between the UK and the EU post-Brexit.  Indeed, this illustrates a wider uncertainty with regard to the Bill: insofar as it is being debated at a time when the future relationship between the UK and the EU is unknown, it is difficult to assess the Bill’s likely consequences and implications fully.

The Bill is to be debated in the House of Lords on 30-31 January and it will not come as a surprise if amendments are passed which will then need to be considered by the House of Commons.

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