UK: Brexit: UK Government Publishes First Batch Of Withdrawal Act Orders To Amend The Law

Last Updated: 13 August 2018
Article by Christine O'Neill, Charles Livingstone and Hannah Frahm

As Brexit negotiations between the EU and the UK continue after the publication of the UK's proposals for the future UK-EU relationship, the UK Government is making preparations for Brexit. These preparations include producing the orders required to adapt the legal landscape for a post-Brexit future.

Background: ministerial powers and statutory instruments

On 26 June 2018, the European Union (Withdrawal) Act 2018 ("the Act") was enacted. With effect from the day the UK leaves the EU, the Act will convert into UK domestic law the existing body of EU law in order to provide a functioning statute book. To ensure the UK exits the EU with maximum legal certainty, continuity and control, section 8 of the Act confers powers on Ministers to amend EU regulations and EU-derived laws so they will work post-Brexit, including so-called "Henry VIII" powers to amend primary legislation. This will be done through statutory instruments (SIs) "to prevent, remedy or mitigate any failure of EU law to operate effectively, or any other deficiency in retained EU law."

The first batch of proposed SIs under the Act has now been published, each accompanied by an explanatory memorandum outlining the reasons for, and purpose of, the SI.

Prior to being implemented into law, these SIs will have to pass through the newly established European Statutory Instruments Committee in the House of Commons and the (already existing) Secondary Legislation Scrutiny Committee in the House of Lords. These Committees will have the job of "sifting" draft SIs that the Government proposes should be subject to the negative resolution procedure (i.e. will become law automatically unless one of the Houses of Parliament expressly votes against it). The memorandum that accompanies each proposed SI contains a statement from a Government Minister explaining why they consider the negative resolution procedure to be appropriate.

The Committees will consider whether it is appropriate for the proposed SI to be subject to the negative procedure. If it thinks the SI should be debated and expressly approved by the House before it becomes law (i.e. subject to the affirmative procedure) it will make a recommendation to that effect. While the Government is not obliged to accept such a recommendation it is unlikely that it would refuse.

How the "Brexit SIs" will fix the law

The SIs will be designed to ensure the effectiveness and suitability of "retained EU law" post-Brexit. To date, 24 draft SIs have been published, covering a wide range of topics and identifying certain deficiencies in the law that need to be 'fixed' at the point the UK withdraws from the EU (and the SIs will not take effect until that occurs). A sample of the first batch illustrates the sort of changes that will need to be made.

  • The Department for Transport has published the Airports (Groundhandling) (Amendment) (EU Exit) Regulations 2018 in order to correct deficiencies in the Airport (Groundhandling) Regulations 1997, which implemented into domestic law an EU Directive on access to the groundhandling market at EU airports. The purpose of the Directive was to facilitate an open and competitive market for groundhandling services (such as baggage handling, fuelling and defueling, de-icing of an aircraft) at airports in the EU. The explanatory memorandum states that changes to the 1997 Regulations are necessary because it will no longer be appropriate for the operators of UK airports to publish an invitation to tender in the Official Journal of the European Union, for the EU Commission to have a role in approving exemptions for particular airports, or for the UK to take reciprocal action against third countries that discriminate against suppliers of groundhandling services or airport users from EU Member States (the UK will still be able to take reciprocal action post-Brexit where a country – including an EU Member State – denies access to UK suppliers or users).
  • The Department for Environment, Food & Rural Affairs has published the Animal Health and Welfare (Misc. Amendments)(England)(EU Exit) Regulations 2018. The SI aims to ensure "that English law, which implements current EU requirements for the registration of laying hen establishments, the welfare of animals on-farm, the welfare of animals during transport and the welfare of animals at the time of killing remain effective in England". The SI also removes references to EU Member States and institutions, as well as mutual recognition requirements in domestic legislation implementing EU laws. The limitation of this SI to England illustrates the fact that it will be for the devolved authorities, including the Scottish Government, to make adjustments to devolved legislation (e.g. the Registration of Establishments Keeping Laying Hens (Scotland) Regulations 2003). Whether the Scottish Government will rely on the Act or its own Continuity Bill to make those changes will depend on the outcome of the reference heard in the Supreme Court last week. See further details in our briefing on the Act and its effects in Scotland.
  • The Department for Digital, Culture, Media & Sport has published the Return of Cultural Objects (Revocation) Regulations 2018. It will revoke current domestic legislation that implements an EU Directive requiring EU Member States to return any cultural objects unlawfully removed from the territory of another EU Member State. The SI is to avoid a one-sided obligation upon the UK to return cultural objects, in the event that there is no agreement on continuing the reciprocal obligation.
  • The Department of Business, Energy and Industrial Strategy has published the Postal and Parcel Services (Amendment etc.) (EU Exit) Regulations 2018. The SI amends UK legislation that implements the EU's "regulatory framework for the European postal services" by removing or replacing references to obligations under EU law that would no longer have effect or become redundant after the UK's withdrawal from the EU. It will also revoke the directly-applicable EU Parcel Delivery Regulation (2018/644), which currently requires that certain information on cross-border parcel delivery be provided to the Commission, an obligation that would no longer apply to a post-Brexit UK.

Outlook

In the event that a deal is reached between the UK and the EU on their future relationship, it is quite possible that some of the SIs made under the Act will be amended or repealed altogether. For example, the SIs outlined above would have to at least be modified if there was an agreement to continue the current reciprocal arrangements in the relevant areas. However, it is vital to prepare for all eventualities to ensure there will be no major disruption to the statute book when Brexit takes place.

While the Act sets the stage for the law to be amended, it is the SIs that will do the work of ensuring there is an orderly statute book at the point the UK withdraws from the EU. The first batch of proposed SIs illustrates the sheer range of sectors and issues that are covered by legislation or regulation derived from the EU, and there will be many more drafts to come. The Department for Exiting the European Union has previously estimated that 800 to 1,000 SIs will be required under the Act (though it clarified in May that it should be closer to 800 than 1,000), and all sectors of the economy should expect that suite of legislative changes to include some matters relevant to them. Businesses should therefore be engaging now to ensure they understand how their regulatory environment could change, and that they can liaise with government to make sure their interests and concerns are taken fully into account in ensuring as smooth a legal transition as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Reed Smith (Worldwide)
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Reed Smith (Worldwide)
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions