The treatment of ‘no deal’ statutory instruments if a Brexit deal is reached

Posted in UK and EU legal framework

Over the past few months, the UK Government has published numerous draft statutory instruments under the European Union (Withdrawal) Act and other legislation, with the aim of ensuring that UK laws function sensibly after Brexit. Many of these are designed only to come into force in the event of a no deal Brexit.

In response to a query by Baroness Taylor of Bolton, the UK Government has published a letter from David Lidington MP, Minister for the Cabinet Office, addressing the treatment of such no-deal statutory instruments in the event that a deal is reached between the EU and the UK as to the terms of the UK’s departure.

The letter refers to the Government’s White Paper, Legislating for the Withdrawal Agreement between the United Kingdom and the European Union, published in July 2018, which notes that as EU rules and regulations will continue to apply in the UK during any implementation period, a EU (Withdrawal Agreement) Bill will need to amend the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’ can take place at the end of the implementation period. Further, the White Paper states that, in order to prepare for an agreement, provision may be needed to defer, revoke or amend the statutory instruments laid to prepare the UK for its exit from the EU.

The letter confirms that the Government has now decided that the Bill will need to defer most statutory instruments so that, instead of coming into force on exit day, they come into force at the end of the implementation period. The Bill will also ensure this deferral can apply to statutory instruments made under enactments other than those in the EU (Withdrawal) Act 2018.

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