Exiting the EU Committee report on European Union (Withdrawal) Bill

• Government’s amendments to set exit day as 11pm on 29 March 2019 would create significant difficulties if EU negotiations go down to the wire.

• Call for more clarity on the scope and status of retained EU law. 

• Article 191 of the Treaty on the Functioning of the EU – which covers the precautionary principle – should be converted into domestic law as a directly effective right. 

• Government asked to justify the purpose of Clause 9 of the EU (Withdrawal) Bill given its announcement of a separate EU Withdrawal Agreement and Implementation Bill.

Today’s report on the European Union (Withdrawal) Bill follows a short inquiry to examine aspects of the Bill in order to inform the Committee and Report Stage. The inquiry focussed on the Bill’s provisions for converting the acquis communautaire into British law, the implications for the devolution settlements and the power to implement the withdrawal agreement.

Exiting the EU Committee Chair, Hilary Benn MP, said: 

“The EU (Withdrawal) Bill marks a significant moment in the process of leaving the EU. As our Report makes clear, this is anything but a straightforward task as all existing EU legislation will need to be copied across into UK law to ensure continuity after exit day. With an estimated 800-1000 statutory instruments, Parliament will need to work hard to make this happen.

“We need to maintain flexibility as the negotiations proceed, but ministers are now proposing to remove from the Bill the power to set different exit days for different purposes and replace it with a single exit day – 11pm on 29 March 2019. This would create significant difficulties if the negotiations were to continue until the 59^th minute of the 11^th hour, as the Secretary of State suggested to us might happen.

“Our inquiry has also revealed that there is not a consistent view about how the Bill’s provisions will work in practice. Government should provide more clarity and information for citizens, businesses, regulatory authorities and the courts about the scope and status of retained EU law. This should include making clear whether it is to be treated by the courts as primary legislation, so that they cannot rule it to be invalid, or secondary. Greater clarity should also be given to assist judges on exactly how they are to apply European Court of Justice decisions issued after exit day.

“We also want to see Article 191 of the Treaty on the Functioning of the European Union – which covers the precautionary principle and polluter pays – included as a directly effective right to be converted into domestic law.

“We welcome the Government’s announcement that there will now be separate primary legislation to implement any EU withdrawal agreement and transitional period, but this does beg the question as to what Clause 9 of the EU (Withdrawal) Bill – which is all about implementing a withdrawal agreement – is now for?”

After leaving the EU, some retained EU laws could be amended to better reflect the UK’s regulatory and business environment. In other areas, it will be in the UK’s interest to keep pace with changes to laws in the EU as seems to be suggested, for example, by the delegated powers in the Trade Bill and the Nuclear Safeguards Bill. Government should also publish details of how they will ensure the UK’s regulatory agencies have the necessary resources and enforcement powers which are vital for consumer confidence and access to markets.

The Committee heard evidence for and against the Bill’s removal of the Charter of Fundamental Rights from domestic law. The purpose of the Bill is to provide legal certainty for the UK the day after it leaves the EU and not to reshape rights in the UK. It would be helpful if the Government published its memorandum on rights set out in the Charter, as referred to by the Minister, before Clause 5 is considered in Committee Stage of the Bill.

The Committee encourages the Government to improve engagement with the devolved administrations in order to break the current deadlock on devolved powers and reach agreement with the devolved administrations on how and when reserved competencies will be devolved.

An estimated 800 to 1,000 statutory instruments will need to be passed before exit day.  In the course of the Committee Stage of the Bill, the Committee recommends that an interim Report prepared by the Procedure Committee on the scrutiny of delegated legislation under the Bill is given further consideration by the House. Uncertainty will only be removed if all the necessary legislative amendments are in place by any potential exit day to ensure no gaps are left in the statute book.