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amendments will be needed to enable retention of EU law under sections 2 and 4 of the EU(W)A if the ECA is to be repealed on exit day (at the beginning of the implementation / transition period) while the snapshot of EU law is to be taken on 'retention day' (at the end of the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.
We are currently recruiting for a new Treasurer and three new Trustees to join our Board. If you have experience in financial management, fundraising, digital communications and stakeholder partnerships we particularly want to hear from you!
On Friday 12 September, the House of Lords will debate the Bill to legalise assisted dying in England and Wales. We explore what lies ahead for the Bill in the Upper House with Sir David Beamish, former Clerk of the Parliaments – the Lords’ most senior official. Sharing an insider’s guide to the Chamber’s unique, self-regulating procedures, Sir David explains how the legislative process differs from the Commons, and what that could mean for the Terminally Ill Adults (End of Life) Bill’s potentially long and contested passage. Please help us by completing our Listener Survey. It will only take a few minutes.
In this episode we speak with historian Jonathan Healey about one of the most extraordinary days in parliamentary history when King Charles I entered the Commons Chamber with soldiers aiming to arrest five MPs. This dramatic moment, vividly recounted in Healey’s new book The Blood in Winter, marked a crucial turning point toward civil war. We explore the power struggles, propaganda, and the geography that shaped the fate of a nation and the Westminster Parliament. Please help us by completing our Listener Survey. It will only take a few minutes.
Legal expert Joshua Rozenberg joins us this week to unpack the legal and constitutional ramifications of one of the most troubling intersections of government secrecy, national security, and parliamentary accountability in recent memory. Thousands of Afghans who had worked with British forces were placed at risk of Taliban revenge attacks after a catastrophic government data leak in 2022 exposed their details. In response, ministers secured a “super-injunction” – so secret that even its existence could not be reported – effectively silencing public debate and preventing parliamentary scrutiny for almost two years. The breach, only revealed this week, led to a covert resettlement scheme which has already cost taxpayers millions of pounds. Please help us by completing our Listener Survey. It will only take a few minutes.
In our 100th episode, we take stock of Parliament one year after the 2024 general election. With a fractured opposition, a dominant Labour government, and a House of Commons still governed by rules designed for a two-party system, how well is this new Parliament really functioning? Please help us by completing our Listener Survey. It will only take a few minutes.
