Explanatory Notes

Lords Amendments to Schedule 1: Further provision about exceptions to savings and incorporation

Lords Amendment 52*

78 Lords Amendment 52 relates to challenges to retained EU law in domestic law after exit on the basis that an EU instrument was invalid.

79 This amendment would remove the mechanism under which a Minister of the Crown could specify in regulations the circumstances in which such validity challenges could be available in domestic law. It would also remove the ability for regulations made under this power to provide for a challenge which would have been brought against an EU institution before exit to be brought instead against a public authority in the United Kingdom after exit.

80 The amendment would not affect the general exclusion of challenges to retained EU law on validity grounds after exit, provided for under paragraph 1 of Schedule 1.

Lords Amendment 53*

81 Lords Amendment 53 would remove from Schedule 1 the general exclusion of rights of action in domestic law based on a failure to comply with the general principles of EU law. Claimants would therefore continue to be able to bring legal action on the basis of incompatibility with the general principles. Courts, tribunals or other public authorities would retain the remedy to disapply or quash legislation and executive actions that is found to be incompatible with the general principles, including UK legislation which is in the scope of EU law that was passed after exit day.


Prepared 22nd May 2018