The European Union (Withdrawal) Bill was published by the Government in July 2017 and is the key piece of UK domestic legislation that will implement Brexit.
Repeal of the European Communities Act
The principal purpose of the Bill is to repeal the European Communities Act 1972, which gives effect and priority to EU law in the UK, thereby formally reasserting the sovereignty and independence of domestic law. The Government had published a White Paper in March 2017, Legislating for the United Kingdom's withdrawal from the European Union (the "White Paper") proposing a "Great Repeal Bill". The now less dramatically titled European Union (Withdrawal) Bill (the "Withdrawal Bill") is the vehicle for that legislation. The Government has also published detailed draft explanatory notes for the Bill ("Explanatory Notes").
Importing EU Law into UK Law
In order to avoid a large vacuum in UK law when EU law ceases to apply, the Withdrawal Bill is intended to preserve and convert into domestic law the whole body of EU law applying to the UK at the time it leaves the EU. The actual language used in the draft Bill is, however, considerably less clear than the accompanying Explanatory Notes and will require attention on its passage through Parliament if legal clarity and certainty are to be achieved. The draft also contains hidden surprises, in particular a provision in Schedule 1 removing virtually all ability for the UK courts to give effect to general principles of EU law, such as proportionality and legal certainty, potentially even in cases about pre-Brexit matters. This would change the rules of public law enforcement significantly and may limit the ability of the courts to apply EU case law more generally, despite the Government's stated intentions.
"Henry VIII" Powers to change statutes by secondary legislation
The Withdrawal Bill also proposes to create extensive powers for the Government to make secondary legislation which amends Acts of Parliament as well as existing secondary legislation. These powers include, not just a time limited right to adjust retained EU law to make it fit for purpose in a domestic context, but also wide consequential powers to amend legislation in addition to specific powers to implement any leaving agreement and to ensure compliance with the UK's ongoing international obligations.
In this briefing, we explain the main features of the Withdrawal Bill, how it will impact on UK law and the important scope and interpretation issues that it raises.
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2018