European Union (Withdrawal) Bill (HL Bill 102)

Repeal of the ECA

1 Repeal of the European Communities Act 1972

(1) Subsection (2) applies if, and only if, the condition in subsection (3) is met.

(2) The European Communities Act 1972 is repealed on exit day.

(3) 5The condition in this subsection is that, by 31 October 2018, a Minister of the
Crown has laid before both Houses of Parliament a statement outlining the
steps taken in negotiations under Article 50(2) of the Treaty on European
Union to negotiate, as part of the framework for the United Kingdom’s future
relationship with the European Union, an arrangement which enables the
10United Kingdom to continue participating in a customs union with the
European Union.

Retention of existing EU law

2 Saving for EU-derived domestic legislation

(1) EU-derived domestic legislation, as it has effect in domestic law immediately
15before exit day, continues to have effect in domestic law on and after exit day.

(2) In this section “EU-derived domestic legislation” means any enactment so far
as—

(a) made under section 2(2) of, or paragraph 1A of Schedule 2 to, the
European Communities Act 1972,

(b) passed or made, or operating, for a purpose mentioned in section
2(2)(a) or (b) of that Act,

(c) 5relating to anything—

(i) which falls within paragraph (a) or (b), or

(ii) to which section 3(1) or 5(1) applies, or

(d) relating otherwise to the EU or the EEA,

but does not include any enactment contained in the European Communities
10Act 1972.

(3) This section is subject to section 6 and Schedule 1 (exceptions to savings and
incorporation).

3 Incorporation of direct EU legislation

(1) Direct EU legislation, so far as operative immediately before exit day, forms
15part of domestic law on and after exit day.

(2) In this Act “direct EU legislation” means—

(a) any EU regulation, EU decision or EU tertiary legislation, as it has effect
in EU law immediately before exit day and so far as—

(i) it is not an exempt EU instrument (for which see section 19(1)
20and Schedule 6),

(ii) it is not an EU decision addressed only to a member State other
than the United Kingdom, and

(iii) its effect is not reproduced in an enactment to which section 2(1)
applies,

(b) 25any Annex to the EEA agreement, as it has effect in EU law immediately
before exit day and so far as—

(i) it refers to, or contains adaptations of, anything falling within
paragraph (a), and

(ii) its effect is not reproduced in an enactment to which section 2(1)
30applies, or

(c) Protocol 1 to the EEA agreement (which contains horizontal
adaptations that apply in relation to EU instruments referred to in the
Annexes to that agreement), as it has effect in EU law immediately
before exit day.

(3) 35For the purposes of this Act, any direct EU legislation is operative immediately
before exit day if—

(a) in the case of anything which comes into force at a particular time and
is stated to apply from a later time, it is in force and applies
immediately before exit day,

(b) 40in the case of a decision which specifies to whom it is addressed, it has
been notified to that person before exit day, and

(c) in any other case, it is in force immediately before exit day.

(4) This section—

(a) brings into domestic law any direct EU legislation only in the form of
45the English language version of that legislation, and

(b) does not apply to any such legislation for which there is no such
version,

but paragraph (a) does not affect the use of the other language versions of that
legislation for the purposes of interpreting it.

(5) This section is subject to section 6 and Schedule 1 (exceptions to savings and
incorporation).

4 5Enhanced protection for certain areas of EU law

(1) Following the day on which this Act is passed, a Minister of the Crown may
not amend, repeal or revoke retained EU law relating to—

(a) employment entitlements, rights and protection,

(b) equality entitlements, rights and protection,

(c) 10health and safety entitlements, rights and protection,

(d) consumer standards, or

(e) environmental standards and protection,

except by primary legislation, or by subordinate legislation made under any
Act of Parliament insofar as this subordinate legislation meets the
15requirements in subsections (2) to (5).

(2) Subordinate legislation which amends, repeals or revokes retained EU law in
the areas set out in subsection (1) must be subject to an enhanced scrutiny
procedure, to be established by regulations made by the Secretary of State.

(3) Regulations under subsection (2) may not be made unless a draft has been laid
20before, and approved by a resolution of, each House of Parliament.

(4) The enhanced scrutiny procedure provided for by subsection (2) must include
a period of consultation with relevant stakeholders.

(5) When making regulations relating to the areas of retained EU law set out in
subsection (1), whether under this Act or any other Act of Parliament, a
25Minister of the Crown must—

(a) produce an explanatory statement under paragraph 27 of Schedule 7,
and

(b) include a certification that the regulation does no more than make
technical changes to retained EU law in order for it to work following
30exit.

5 Saving for rights etc. under section 2(1) of the ECA

(1) Any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which, immediately before exit day—

(a) are recognised and available in domestic law by virtue of section 2(1) of
35the European Communities Act 1972, and

(b) are enforced, allowed and followed accordingly,

continue on and after exit day to be recognised and available in domestic law
(and to be enforced, allowed and followed accordingly).

(2) Subsection (1) does not apply to any rights, powers, liabilities, obligations,
40restrictions, remedies or procedures so far as they—

(a) form part of domestic law by virtue of section 3, or

(b) arise under an EU directive (including as applied by the EEA
agreement) and are not of a kind recognised by the European Court or
any court or tribunal in the United Kingdom in a case decided before
45exit day (whether or not as an essential part of the decision in the case).

(3) This section is subject to section 6 and Schedule 1 (exceptions to savings and
incorporation).

6 Exceptions to savings and incorporation

(1) The principle of the supremacy of EU law does not apply to any enactment or
5rule of law passed or made on or after exit day.

(2) Accordingly, the principle of the supremacy of EU law continues to apply on
or after exit day so far as relevant to the interpretation, disapplication or
quashing of any enactment or rule of law passed or made before exit day.

(3) Subsection (1) does not prevent the principle of the supremacy of EU law from
10applying to a modification made on or after exit day of any enactment or rule
of law passed or made before exit day if the application of the principle is
consistent with the intention of the modification.

(4) The following provisions of the Charter of Fundamental Rights are not part of
domestic law on or after exit day—

(a) 15the Preamble, and

(b) Chapter V.

(5) Schedule 1 (which makes further provision about exceptions to savings and
incorporation) has effect.

7 Interpretation of retained EU law

(1) 20A court or tribunal—

(a) is not bound by any principles laid down, or any decisions made, on or
after exit day by the European Court, and

(b) cannot refer any matter to the European Court on or after exit day.

(2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to
25anything done on or after exit day by the European Court, another EU entity
or the EU so far as it is relevant to any matter before the court or tribunal.

(3) Any question as to the validity, meaning or effect of any retained EU law is to
be decided, so far as that law is unmodified on or after exit day and so far as
they are relevant to it—

(a) 30in accordance with any retained case law and any retained general
principles of EU law, and

(b) having regard (among other things) to the limits, immediately before
exit day, of EU competences.

(4) But—

(a) 35the Supreme Court is not bound by any retained EU case law,

(b) the High Court of Justiciary is not bound by any retained EU case law
when—

(i) sitting as a court of appeal otherwise than in relation to a
compatibility issue (within the meaning given by section
40288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a
devolution issue (within the meaning given by paragraph 1 of
Schedule 6 to the Scotland Act 1998), or

(ii) sitting on a reference under section 123(1) of the Criminal
Procedure (Scotland) Act 1995, and

(c) no court or tribunal is bound by any retained domestic case law that it
would not otherwise be bound by.

(5) In deciding whether to depart from any retained EU case law, the Supreme
Court or the High Court of Justiciary must apply the same test as it would
5apply in deciding whether to depart from its own case law.

(6) Subsection (3) does not prevent the validity, meaning or effect of any retained
EU law which has been modified on or after exit day from being decided as
provided for in that subsection if doing so is consistent with the intention of the
modifications.

(7) 10In this Act—

• “retained case law” means—

  (a)

  retained domestic case law, and

  (b)

  retained EU case law;

• “retained domestic case law” means any principles laid down by, and any
  15decisions of, a court or tribunal in the United Kingdom, as they have
  effect immediately before exit day and so far as they—

  (a)

  relate to anything to which section 2, 3 or 5 applies, and

  (b)

  are not excluded by section 6 or Schedule 1,

  (as those principles and decisions are modified by or under this Act or
  20by other domestic law from time to time);

• “retained EU case law” means any principles laid down by, and any
  decisions of, the European Court, as they have effect in EU law
  immediately before exit day and so far as they—

  (a)

  relate to anything to which section 2, 3 or 5 applies, and

  (b)

  25are not excluded by section 6 or Schedule 1,

  (as those principles and decisions are modified by or under this Act or
  by other domestic law from time to time);

• “retained EU law” means anything which, on or after exit day, continues
  to be, or forms part of, domestic law by virtue of section 2, 3 or 5 or
  30subsection (3) or (6) above (as that body of law is added to or otherwise
  modified by or under this Act or by other domestic law from time to
  time);

• “retained general principles of EU law” means the general principles of
  EU law, as they have effect in EU law immediately before exit day and
  35so far as they—

  (a)

  relate to anything to which section 2, 3 or 5 applies, and

  (b)

  are not excluded by section 6 or Schedule 1,

  (as those principles are modified by or under this Act or by other
  domestic law from time to time).

8 40Status of retained EU law

(1) Anything which—

(a) was, immediately before exit day, primary legislation of a particular
kind, subordinate legislation of a particular kind or another enactment
of a particular kind, and

(b) 45continues to be domestic law on and after exit day by virtue of section 2,

continues to be domestic law as an enactment of the same kind.

(2) Retained direct principal EU legislation cannot be modified by any primary or
subordinate legislation other than—

(a) an Act of Parliament,

(b) any other primary legislation (so far as it has the power to make such a
5modification), or

(c) any subordinate legislation so far as it is made under a power which
permits such a modification by virtue of—

(i) paragraph 3, 5(3)(a) or (4)(a), 8(3), 10(3)(a) or (4)(a), 11(2)(a) or
12(3) of Schedule 8,

(ii) 10any other provision made by or under this Act,

(iii) any provision made by or under an Act of Parliament passed
before, and in the same Session as, this Act, or

(iv) any provision made on or after the passing of this Act by or
under primary legislation.

(3) 15Retained direct minor EU legislation cannot be modified by any primary or
subordinate legislation other than—

(a) an Act of Parliament,

(b) any other primary legislation (so far as it has the power to make such a
modification), or

(c) 20any subordinate legislation made under a power which permits such a
modification by virtue of—

(i) paragraph 3, 5(2), 8(3), 10(2) or 12(3) of Schedule 8,

(ii) any other provision made by or under this Act,

(iii) any provision made by or under an Act of Parliament passed
25before, and in the same Session as, this Act, or

(iv) any provision made on or after the passing of this Act by or
under primary legislation.

(4) Anything which is retained EU law by virtue of section 4 cannot be modified
by any primary or subordinate legislation other than—

(a) 30an Act of Parliament,

(b) any other primary legislation (so far as it has the power to make such a
modification), or

(c) any subordinate legislation made under a power which permits such a
modification by virtue of—

(i) 35paragraph 3, 5(3)(b) or (4)(b), 8(3), 10(3)(b) or (4)(b), 11(2)(b) or
12(3) of Schedule 8,

(ii) any other provision made by or under this Act,

(iii) any provision made by or under an Act of Parliament passed
before, and in the same Session as, this Act, or

(iv) 40any provision made on or after the passing of this Act by or
under primary legislation.

(5) For other provisions about the status of retained EU law, see—

(a) section 6(1) to (3) (status of retained EU law in relation to other
enactments or rules of law),

(b) 45section 7 (status of retained case law and retained general principles of
EU law),

(c) section 17(2) and Part 2 of Schedule 5 (status of retained EU law for the
purposes of the rules of evidence),

(d) paragraphs 17 and 18 of Schedule 8 (status of certain retained direct EU
legislation for the purposes of the Interpretation Act 1978), and

(e) paragraph 28 of that Schedule (status of retained direct EU legislation
for the purposes of the Human Rights Act 1998).

(6) 5In this Act—

• “retained direct minor EU legislation” means any retained direct EU
  legislation which is not retained direct principal EU legislation;

• “retained direct principal EU legislation” means—

  (a)

  any EU regulation so far as it—

  (i)

  10forms part of domestic law on and after exit day by
  virtue of section 3, and

  (ii)

  was not EU tertiary legislation immediately before exit
  day, or

  (b)

  any Annex to the EEA agreement so far as it—

  (i)

  15forms part of domestic law on and after exit day by
  virtue of section 3, and

  (ii)

  refers to, or contains adaptations of, any EU regulation
  so far as it falls within paragraph (a),

  (as modified by or under this Act or by other domestic law from time
  20to time).

Main powers in connection with withdrawal

9 Dealing with deficiencies arising from withdrawal

(1) A Minister of the Crown may by regulations make such provision as is
necessary to prevent, remedy or mitigate—

(a) 25any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(2) Deficiencies in retained EU law are where the Minister considers that retained
EU law—

(a) 30contains anything which has no practical application in relation to the
United Kingdom or any part of it or is otherwise redundant or
substantially redundant,

(b) confers functions on, or in relation to, EU entities which no longer have
functions in that respect under EU law in relation to the United
35Kingdom or any part of it,

(c) makes provision for, or in connection with, reciprocal arrangements
between—

(i) the United Kingdom or any part of it or a public authority in the
United Kingdom, and

(ii) 40the EU, an EU entity, a member State or a public authority in a
member State,

which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements
which—

(i) 45involve the EU, an EU entity, a member State or a public
authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom’s
membership of the EU,

and which no longer exist or are no longer appropriate,

(e) makes provision for, or in connection with, any reciprocal or other
5arrangements not falling within paragraph (c) or (d) which no longer
exist, or are no longer appropriate, as a result of the United Kingdom
ceasing to be a party to any of the EU Treaties,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before exit
10day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) There is also a deficiency in retained EU law where the Minister considers that
there is—

(a) 15anything in retained EU law which is of a similar kind to any deficiency
which falls within subsection (2), or

(b) a deficiency in retained EU law of a kind described, or provided for, in
regulations made by a Minister of the Crown.

(4) But retained EU law is not deficient merely because it does not contain any
20modification of EU law which is adopted or notified, comes into force or only
applies on or after exit day.

(5) Regulations under subsection (1) may make any provision that could be made
by an Act of Parliament.

(6) Regulations under subsection (1) may (among other things) provide for
25functions of EU entities or public authorities in member States (including
making an instrument of a legislative character or providing funding) to be—

(a) exercisable instead by a public authority (whether or not established for
the purpose) in the United Kingdom, or

(b) replaced, abolished or otherwise modified.

(7) 30But regulations under subsection (1) may not—

(a) impose or increase taxation or fees,

(b) make retrospective provision,

(c) create a relevant criminal offence,

(d) establish a public authority,

(e) 35be made to implement the withdrawal agreement,

(f) amend, repeal or revoke the Human Rights Act 1998 or any
subordinate legislation made under it, or

(g) amend or repeal the Scotland Act 1998, the Government of Wales Act
2006 or the Northern Ireland Act 1998 (unless the regulations are made
40by virtue of paragraph 20(b) of Schedule 7 to this Act or are amending
or repealing any provision of those Acts which modifies another
enactment).

(8) No regulations may be made under this section after the end of the period of
two years beginning with exit day.

(9) 45The reference in subsection (1) to a failure or other deficiency arising from the
withdrawal of the United Kingdom from the EU includes a reference to any
failure or other deficiency arising from that withdrawal taken together with the

operation of any provision, or the interaction between any provisions, made by
or under this Act.

10 Parliamentary approval of the outcome of negotiations with the European
Union

(1) 5Without prejudice to any other statutory provision relating to the withdrawal
agreement, Her Majesty’s Government may conclude such an agreement only
if a draft has been—

(a) approved by a resolution of the House of Commons, and

(b) subject to the consideration of a motion in the House of Lords.

(2) 10So far as practicable, a Minister of the Crown must make arrangements for the
resolution provided for in subsection (1)(a) to be debated and voted on before
the European Parliament has debated and voted on the draft withdrawal
agreement.

(3) Her Majesty’s Government may implement a withdrawal agreement only if
15Parliament has approved the withdrawal agreement and any transitional
measures agreed within or alongside it by an Act of Parliament.

(4) Subsection (5) applies in each case that any of the conditions in subsections (6)
to (8) is met.

(5) Her Majesty’s Government must follow any direction in relation to the
20negotiations under Article 50(2) of the Treaty on European Union which has
been—

(a) approved by a resolution of the House of Commons, and

(b) subject to the consideration of a motion in the House of Lords.

(6) The condition in this subsection is that the House of Commons has not
25approved the resolution required under subsection (1)(a) by 30 November
2018.

(7) The condition in this subsection is that the Act of Parliament required under
subsection (3) has not received Royal Assent by 31 January 2019.

(8) The condition in this subsection is that no withdrawal agreement has been
30reached between the United Kingdom and the European Union by 28 February
2019.

(9) In this section, “withdrawal agreement” means an agreement (whether or not
ratified) between the United Kingdom and the EU under Article 50(2) of the
Treaty on European Union which sets out the arrangements for the United
35Kingdom’s withdrawal from the EU and the framework for the United
Kingdom’s future relationship with the European Union.

11 Implementing the withdrawal agreement

(1) A Minister of the Crown may by regulations make such provision as the
Minister considers appropriate for the purposes of implementing the
40withdrawal agreement if the Minister considers that such provision should be
in force on or before exit day, subject to—

(a) approval by Parliament of a mandate for negotiations about the United
Kingdom’s future relationship with the EU, and