The Government’s proposed amendments to the European Union (Withdrawal) Bill

Posted in UK and EU legal framework

The UK Government has proposed further amendments to the European Union (Withdrawal) Bill. This follows the Government’s defeat on an amendment to the Bill in December (discussed previously), which will allow Parliament to vote on any final Brexit deal.

The Government’s new proposed amendments seek to allay fears over and constrain the use of Henry VIII powers contained in the Bill, although the extent to which they will succeed in this regard remains to be seen. According to the proposals, the circumstances listed in clause 7 of the Bill, giving Ministers powers to make regulations to prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the UK’s withdrawal from the EU, should comprise an exhaustive list, rather than an illustrative list as originally drafted – thereby limiting the instances in which such powers could be exercised.  The list of ‘deficiencies’ is set out in clause 7(2) of the Bill and referred to in our earlier post here.

The impact of this potential change is, however, tempered by a further proposed clause (7(2A)), which includes provision that anything which is of a similar kind to any deficiency falling within clause 7(2) will also be a ‘deficiency’ for the purposes of clause 7, and moreover, provision giving power for a Minister to describe, or provide for, other ‘deficiencies’ in regulations (i.e. by secondary legislation).

On devolution, the Government’s proposed amendment to the Bill includes the removal of provisions that devolved administrations would require the UK Government’s consent before exercising correcting powers to amend retained EU law in the circumstances set out in Part 1 of Schedule 2 to the Bill. Instead, devolved administrations would only have to ‘consult’ with the UK Government in those circumstances.

Finally, the Government has proposed a period of three months after Brexit day to allow for legal challenges based on the principles of EU law, relating to matters occurring before Brexit day (and which are not for the purposes of quashing an Act of Parliament or an aspect of common law).

The Bill is due to receive its third reading in the House of Commons in mid-January and a number of opposition amendments also remain to be debated. After that, the Bill will face further scrutiny in the House of Lords.  As such, further amendments to the Bill should not be ruled out.   

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