The EU Withdrawal Bill - What Does it Do?

It has caused quite a stir. Some people have labelled it as having Henry VIII Powers - ie enabling the UK Government to do whatever it likes when amending or changing primary legislation without Parliamentary scrutiny.

The reality of what is behind the Bill is rather different. There is so much law that derives from EU law over the last 40 years, that so many parts need replacing or tweaking to make them work properly once the UK has left the EU. The trouble is that there is such a volume of law that it would be impossible in the time available for all of it to be scrutinised. The Government therefore wants to be able to make the changes as easily as it can through use of Statutory Instrument so that the existing laws can continue sensibly. On the other side of the argument is concern that the Government could misuse powers by making changes without proper Parliamentary scrutiny. The issue is, where should the balance be struck?

That is a political argument that needs to be settled in Parliament during the passage of the Bill.

The Underlying Outline of the Bill

• From exit day, the European Communities Act 1972 would be repealed. This is the legislation that means that EU law applies in the UK.

• Any EU law that had effect immediately before exit day would be preserved by retention of domestic laws that derive from EU law.

• EU law would still be supreme for any law passed or made before exit day. For any EU law retained on exit day, UK courts would interpret it in line with decisions of the European Court of Justice before exit day. Those decisions would have equivalence to UK Supreme Court decisions - in other words, the Supreme Court could depart from those decisions where it is right to do so. UK courts would not be bound by decisions made by the European Court of Justice on or after exit day.

• UK Government ministers would have very broad powers to amend law through secondary legislation to deal with deficiencies in retaining any EU laws so that they work effectively. The default position would be that the secondary legislation applies unless Parliament annuls it - in other words, the position of Parliament would be to decide what to reject rather than what to approve. These powers would be time limited and would be expected to last for just two years from exit day. The questions arise over what is meant by 'deficiency' and 'effectively'.

The Bill does not detail what any future relationship with the EU would look like - that is a matter for negotiation and agreement between the UK and the EU. The Bill is purely about what to do with UK's laws with regard to any EU laws already in place when Brexit takes effect.

It will be interesting to see whether any changes are made to these principles as the Bill passes through Parliament and, as ever, the devil will be in the detail when it comes to seeing the shape of future UK laws that are derived from EU law.

If you would like to share your thoughts on this, please contact Paul Gershlick in our Pharmaceuticals & Life Sciences team or on 01923 919 320.