The European Union (Withdrawal) Bill and negotiation position papers

The UK parliament has been a hive of activity today with the European Union (Withdrawal) Bill (“the Bill”), formerly known as the Great Repeal Bill,…

The UK parliament has been a hive of activity today with the European Union (Withdrawal) Bill, formerly known as the Great Repeal Bill, receiving its first reading in the House of Commons, provoking significant criticism from Parliament. In addition, the UK Government has published three papers setting out the position it will adopt during negotiations with the EU on:

  • Nuclear materials and safeguards issues
  • Ongoing Union judicial and administrative proceedings
  • Privileges and immunities.

The Bill

As promised by the Prime Minister immediately after triggering Brexit, the European Union (Withdrawal) Bill has been drafted to ensure that the European Communities Act 1972 (“ECA 1972”) will be repealed and all existing EU legislation absorbed into UK domestic legislation when the UK leaves the European Union.

The aim of the Bill is to avoid a black hole within the UK’s statute book and maintain the legislative position within the UK at the time of Brexit until such time as the legislation can be reviewed, amended, repealed or improved.

However, the Bill has met with opposition based on:

  • The delegated powers Ministers will be granted to alter legislation without full parliamentary scrutiny (“the Henry VIII powers”). Whilst the Bill expressly excludes delegation of certain powers, such as powers to impose taxation or to create criminal offences, it seems likely that the Government will come under pressure to reduce further the scope of the Henry VIII powers
  • Lack of clarity around further devolution. As drafted, the Bill accepts that the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly will retain responsibility for matters currently devolved to them, but the devolved authorities may consider that this lacks clarity and does not go far enough to protect their interests

  • The withdrawal from the EU’s Charter of Fundamental Rights. With the imminent parliamentary summer recess, the Bill is unlikely to reach its second reading until autumn 2017 when the contents will be debated.

The three position papers

The three position papers have been prepared for presentation to the European Commission for discussion as part of the next negotiation phase. The UK Government has confirmed their intention to leave Euratom whilst simultaneously maintaining a strong mutual interest in continuing nuclear co-operation. The second paper seeks to deal with the status of UK legal cases before the European Court of Justice (“CJEU”) at the time of the UK’s exit, which will not by then have been adjudicated upon. The third paper focuses upon placing a legally acceptable framework of Privileges and Immunities that allows for the smooth conduct of relations between the UK and the EU post Brexit.

Comment

Whilst there has been a flurry of activity at the UK Parliament today, the above will not change the UK’s position in the short term. With the Bill not likely to be debated by Parliament until Autumn 2017, and, thereafter being subject to committee scrutiny, it remains uncertain whether the actual Bill returned to Parliament thereafter will resemble the draft introduced today.

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