‘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amendments will be needed to enable retention of EU law under sections 2 and 4 of the EU(W)A if the ECA is to be repealed on exit day (at the beginning of the implementation / transition period) while the snapshot of EU law is to be taken on 'retention day' (at the end of the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

Briefings / Last-minute powers and limited scrutiny: Parliament and the risks of consigning online safety law to delegated legislation

Two late-stage government amendments to the Crime and Policing Bill and the Children’s Wellbeing and Schools Bill would grant Ministers significant powers to reshape key parts of the Online Safety Act through delegated legislation. While the policy goals may attract support, the method raises serious constitutional concerns about parliamentary scrutiny and accountability. Using these amendments as a case study, this briefing explores the risks of relying on regulations to make policy and explains how the Hansard Society’s proposed reforms to the delegated legislation scrutiny system could better balance governmental flexibility with democratic oversight.

News / Is the assisted dying bill being filibustered? - Parliament Matters podcast, Episode 135

Debate over the Terminally Ill Adults (End of Life) Bill has been so slow in the House of Lords that opponents of the Bill are accused of deliberately running down the clock. Conservative Peer Lord Harper rejects claims of filibustering, arguing that Peers are undertaking necessary scrutiny of a flawed and complex bill. He contends the legislation lacks adequate safeguards and was unsuited to the Private Member’s Bill process and discusses whether MPs might attempt to revive it in a future parliamentary Session. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS

Blog / The Backbench Business Committee 15 years on: Has it given backbench MPs a stronger voice in the House of Commons?

Fifteen years after its creation, the Backbench Business Committee has become an important mechanism through which MPs can secure debates and raise issues in the House of Commons. Drawing on new research analysing debate transcripts and interviews with MPs, Ministers and officials, this blogpost analyses the Committee’s impact on parliamentary agenda-setting and cross-party campaigning. It highlights how the Committee has transformed opportunities for backbenchers while identifying ongoing challenges around participation, transparency and the Committee’s potential role in representing backbench interests more broadly.

News / Parliament Matters Bulletin: What’s coming up in Parliament this week? 9-13 March 2026

The Treasury Committee questions Chancellor Rachel Reeves, the OBR, and the IFS, on the Spring Forecast. The Chancellor also faces MPs’ oral questions. MPs will for the first time debate the legislation – the Courts and Tribunals Bill – that proposes to abolish jury trials. They will also consider proposed Government powers to restrict children’s access to social media, complete the final stages of the Bill to implement the Autumn Budget, and hold a debate to mark International Women’s Day. In the Lords, the House of Lords (Hereditary Peers) Bill returns for consideration of amendments. Peers also continue their scrutiny of the Crime and Policing, Victims and Courts, Tobacco and Vapes, and National Insurance Contributions Bills, while the assisted dying bill reaches its eleventh day in Committee.

News / Starmer, Iran, and Parliament’s role in war powers - Parliament Matters podcast, Episode 134

What role does Parliament play when the UK is involved in military action? In this week’s episode, we explore the evolving practice of parliamentary war powers, sparked by Prime Minister Sir Keir Starmer’s response to recent developments in Iran and the Middle East. We discuss the royal prerogative, the uncertain post-Iraq convention on war powers, and proposals to codify Parliament’s role. Plus, we discuss the return of the Hereditary Peers Bill, proposals to increase MPs’ pay, scrutiny of defence spending, and the Spring Statement and wider economic outlook. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS