‘Retained EU law’: issues for the Withdrawal Agreement Bill

Publications / Briefings

‘Retained EU law’: issues for the Withdrawal Agreement Bill

23 May 2019

Coming on top of the controversial introduction of the concept of 'retained EU law' in the EU (Withdrawal) Act 2018, the provisions for an implementation / transition period in the UK-EU Withdrawal Agreement pose challenges for UK law that the promised Withdrawal Agreement Bill will need to address, including through amendments to the 2018 Act.

In this May 2019 paper, Swee Leng Harris – Head of Policy and Public Affairs at The Legal Education Foundation, and a member of the Bingham Centre's Expert Working Group on the EU (Withdrawal) Bill and the Rule of Law – first considers 'retained EU law' as a new category of UK law in terms of legal and constitutional status. The paper then makes observations about the constitutional and legal significance of implementation of the Withdrawal Agreement treaty in the promised Withdrawal Agreement Bill (WAB). Finally, the paper identifies necessary amendments to the EU (Withdrawal) Act 2018 (EU(W)A) to accommodate an implementation / transition period and to ensure legal certainty on retained EU law in UK law.

The paper draws a number of conclusions regarding retained EU law and legislative changes needed to accommodate an implementation / transition period and promote legal certainty:

Retained EU law needs to be understood in the round, including the constitutional provisions for retained EU law in the EU(W)A, changes made to retained EU law through secondary (or delegated) legislation, and other primary Brexit-related legislation affecting retained EU law.
The WAB will likely replicate the effect of the European Communities Act 1972 to apply EU law in the UK for the implementation / transition period.
EU law will develop and change during the implementation / transition period, and the WAB will need to enable those changes in EU law to be reflected in UK law.
The WAB should also amend the EU(W)A so that new or modified EU laws that apply in the UK through the WAB during implementation / transition form part of retained EU law.
Consequential amendments will be needed to enable retention of EU law under sections 2 and 4 of the EU(W)A if the ECA is to be repealed on exit day (at the beginning of the implementation / transition period) while the snapshot of EU law is to be taken on 'retention day' (at the end of the implementation / transition period).

The paper builds on the author's April 2018 paper 'Legislating for transition / implementation: implications for the EU (Withdrawal) Bill', also published by the Hansard Society, and develops the issues/arguments raised therein.

Latest / Highlights

News / Is the House of Lords going slow on the assisted dying bill? - Parliament Matters podcast, Episode 116

In this episode we look at the latest Covid Inquiry report addressing the lack of parliamentary scrutiny during the pandemic and the need for a better system for emergency law-making. With the Budget approaching, we explore how the Commons Speaker, Sir Lindsay Hoyle MP, might discipline ministers who announce policies outside Parliament and why a little-known motion could restrict debate on the Finance Bill. Sir David Beamish assesses whether the flood of amendments to the assisted dying bill risks a filibuster and raises constitutional questions. Finally, we hear from Marsha de Cordova MP and Sandro Gozi MEP on their work to reset UK–EU relations through the Parliamentary Partnership Assembly. Please help us by completing our Listener Survey. It will only take a few minutes.

Blog / The assisted dying bill: Is the number of Lords amendments a parliamentary record?

The assisted dying bill has attracted an extraordinary number of amendments in the House of Lords, prompting questions about whether the volume is unprecedented. This blog examines how its amendment count compares with other bills in the current Session, and what the historical data shows about previous amendment-heavy legislation.

Blog / The assisted dying bill: Will it run out of time? The parliamentary options explained

Over 1,000 amendments have been tabled to the Terminally Ill Adults (End of Life) Bill in the House of Lords. This blog examines the progress of the Bill at Committee Stage in the House of Lords so far, explores the likelihood of a procedural impasse and what options exist if more parliamentary time is needed.

News / Assisted dying bill - special series #18: A conversation with the Bill’s sponsor, Lord Falconer of Thoroton - Parliament Matters podcast, Episode 115

In this episode, we are joined by Lord Falconer, the Labour Peer steering the Terminally Ill Adults (End of Life) Bill through the House of Lords. Although he has attempted to legislate for assisted dying several times before, this is the first occasion he is working with a bill that has already cleared the House of Commons. In a wide-ranging conversation, he explains why this issue has driven him for more than a decade and assesses the Bill’s prospects of becoming law. Please help us by completing our Listener Survey. It will only take a few minutes.

Briefings / Assisted dying - The Terminally Ill Adults (End of Life) Bill: Rolling news

Stay informed with updates and analysis on the Terminally Ill Adults (End of Life) Bill as it moves through Parliament. Learn about the debates, procedures, decisions, and key milestones shaping the assisted dying legislation.