IN THE MATTER OF THE EUROPEAN UNION (WITHDRAWAL) BILL ADVICE

The document analyzes how the European Union (Withdrawal) Bill treats retained direct EU legislation as subordinate legislation for the purposes of amendment. It argues that this allows Ministers to use existing and future delegated powers to repeal or revoke EU law with lower Parliamentary scrutiny and fewer constraints than the specific powers granted in clauses 7-9 of the Bill. The authors express concern over the ambiguity of the legal status of retained EU law and propose a drafting solution to classify certain retained EU law as primary legislation to protect it from modification by subordinate legislation.

• Schedule 8, paragraphs 3(1) and 5(1) allow retained direct EU legislation to be modified, repealed, or revoked through subordinate legislation, effectively treating it as subordinate legislation regardless of its importance.
• The use of these paragraphs may reduce the level of Parliamentary oversight for amendments to retained direct EU legislation. For instance, if an enabling Act requires an affirmative resolution for primary legislation but a negative resolution for other cases, paragraph 3(2) allows the use of the negative resolution procedure for retained direct EU legislation.
• Unlike the delegated powers in clauses 7-9 of the Bill, paragraphs 3(1) and 5(1) do not impose time limits (sunset clauses) or require that powers be used only to correct 'deficiencies' in the legislation.
• Paragraph 3(3) removes implied EU law restrictions on subordinate legislation, meaning Ministers could use existing powers to amend legislation in ways that were previously incompatible with EU law, such as removing protected species from the Wildlife and Countryside Act 1981.

APA

QC, P. S., & HIGGINS, H. (2018). IN THE MATTER OF THE EUROPEAN UNION (WITHDRAWAL) BILL ADVICE. ClientEarth. https://www.clientearth.org/media/e33f0l4z/qc-eu-withdrawal-bill-advice-from-blackstone-chambers-ext-en.pdf

Chicago

QC, PUSHPINDER SAINI, and HOLLIE HIGGINS. IN THE MATTER OF THE EUROPEAN UNION (WITHDRAWAL) BILL ADVICE. ClientEarth, 2018. https://www.clientearth.org/media/e33f0l4z/qc-eu-withdrawal-bill-advice-from-blackstone-chambers-ext-en.pdf.

Wikipedia

{{cite report |last1=QC |first1=PUSHPINDER SAINI |last2=HIGGINS |first2=HOLLIE |title=IN THE MATTER OF THE EUROPEAN UNION (WITHDRAWAL) BILL ADVICE |publisher=ClientEarth |date=16 February 2018 |url=https://www.clientearth.org/media/e33f0l4z/qc-eu-withdrawal-bill-advice-from-blackstone-chambers-ext-en.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{qc2018matter, author = {QC, PUSHPINDER SAINI and HIGGINS, HOLLIE}, title = {{IN THE MATTER OF THE EUROPEAN UNION (WITHDRAWAL) BILL ADVICE}}, institution = {ClientEarth}, year = {2018}, month = feb, url = {https://www.clientearth.org/media/e33f0l4z/qc-eu-withdrawal-bill-advice-from-blackstone-chambers-ext-en.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }