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The European (Withdrawal Bill) 2017

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Published 31 July 2017


A political drama of historic proportions began with the general election in 2015, continued with the European referendum of 2016 and then unexpectedly failed to find a clear resolution in the general election on 8 June this year. Careers have been abruptly ended, miraculously rejuvenated or even created from nothing out of the ether by this drama - and it is still far from over. The two main parties remain profoundly divided over the preferred outcome and the negotiations with the EU are evidently going to be far from easy. In the meantime, parliamentary business will be dominated by Brexit, not least because, having failed to win the significant majority predicted by most pollsters and pundits, the Conservative party is not pursuing most of the other contentious policies from its election manifesto. However weary of the subject the general public may become, Brexit seems well set to dominate political and parliamentary life in this country, until March 2019 at the very earliest.

The European Union (Withdrawal) Bill 2017 ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands at the moment of exit into domestic law. It creates temporary powers (two years from exit day in most instances) to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Bill also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU.

Limitations placed on regulations made under this Bill include barring all of the following: retrospective provisions, the creation of relevant criminal offences, amending, repealing or revoking the Human Rights Act 1998 or any subordinate legislation made under it. Ministers will also be given the power to make transitional, transitory or saving provisions by regulations.

UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU. After exit day, retained CJEU case law will have the same binding, or precedent, status in domestic courts and tribunals as existing decisions of the UKSC or High Court of Justiciary (Scotland), meaning those courts will be able to choose to depart from previous CJEU case law. In deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.

The Bill amends each of the devolution statutes (the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 2006) so as to maintain the current parameters of devolved competence as regards retained EU law. This is intended to be a transitional arrangement while decisions are taken on where common policy approaches are or are not needed. It provides that the devolved legislatures or administrations may only modify retained EU law to the extent that they had the competence to do so immediately before exit.