On first looking into the Brexit Bill

15 July 2017 by

European Union (Withdrawal) Bill and Explanatory Notes

The Great Repeal Bill has shrunk more prosaically into the EUWB, but its task is technically arduous. The easy bit is clause 1: the European Communities Act 1972 is repealed on (Br)exit day. Job done? No. Job hardly started.

There follows 61 pages of Bill designed to take a snapshot of EU law at exit day, and make it all UK law, for the moment. A few exceptions to this, as we will see, but that is the scheme. It adheres to the plan set out in the March 2017  White Paper: import as a job lot, then amend or delete at leisure.

Importing EU law

The main heavy lifting in this “bringing Euro-law home” Bill is done as follows

  • Cl. 2: EU-derived domestic legislation, i.e. primary and secondary legislation passed to implement EU law in the UK, should continue to have effect after exit day. The EUWB gives the authority for this which the ECA 1972 had done up to now.
  • Cl. 3: directly effective EU legislation, i.e. EU regulations and EU decisions etc, will also continue to form part of domestic law.
  • Cl 4 : rights, powers, liabilities and obligations etc flowing from directly effective EU Treaty provisions will continue to be recognised and enforceable under domestic law even after Brexit.

Cl.4 needs a little bit of unpacking. Things like citizenship rights, free movement of goods, equal pay, state aid and abuse of a dominant position get rolled over by it into domestic law: see the Explanatory Notes. But not everything in the Treaties would arrive into domestic law under cl.4. So take Art.191 TFEU on the environment, containing the precautionary and polluter-must-pay principles. This would only arrive in UK law indirectly, if it is embedded in a Directive or in EU law caselaw such as the Waddenzee cockle fishers case.

Interpreting EU law

Cll.5 and 6  grapple with post-Brexit interpretation of this EU law. EU law ceases to be supreme but only for post-Brexit measures. The courts generally are not bound by post-Brexit CJEU decisions, and cannot refer cases to the CJEU.  They must decide issues about retained EU law by reference to EU principles frozen at exit day. The Supreme Court is not bound by retained EU caselaw, but must apply its own practice about departing from SC decisions to departing from CJEU decisions: cl.6.

As many have pointed out, this is fine for the moment, but the problems will emerge as the CJEU and domestic courts diverge over the years even though the underlying laws remain the same or very similar. And in which courts will European businesses decide to have their battles fought?

The most controversial bit of cl.5 (cl.5(4)) is the statement that the EU Charter “is not part of domestic law on or after exit day”. The Explanatory Notes (p.27) give a very partial account of why this is to be: unnecessary, because the Charter was only a codification of existing rights, and those rights have made it into EU law anyway. There is in fact a much broader debate about whether the Charter is a good or bad thing (see Marina Wheeler QC here), and it is already plain that this is going to  be a political pinch-point. One wonders whether it might not have been easier simply to roll the Charter over, duck the argument for the moment, and fight the battles later once the EUWB is law. Complications will also arise when other bits of retained EU law are influenced by the Charter, which won’t be there any more.

Mending EU law per Henry VIII

Cl.7 has also engendered widespread controversy. It is presented as a modest little number allowing the Government to use secondary legislation to tweak UK laws if they think they would not work properly after Brexit.  But note its breadth:

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

(a) any 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”.

Cl 7(2) sets out a wide but non-exhaustive list of deficiencies which can be remedied. Obvious ones are where someone has to send something to the European Commission before he can get a permit.

But there will be a dizzying array of things which the Minister would like to do via statutory instrument, and which he can say is something to do with a Brexit complication. And he can create entirely new public bodies to help him in this job: cl.7(5), which can themselves come up with statutory instruments. For full discussion on this see Professor Mark Elliott’s post here. So it really is a Henry VIII clause of some concern.

On any view, there has to be some way of mending the 10,000 or so instruments which will become directly part of domestic law, via this Bill, and which do tiresome things like referring to European institutions.

But we can expect sustained efforts in Parliament to inject rather more than the pretty ineffective general system of parliamentary scrutiny into this unprecedented process. The only apparent restraint on this is that this power does not extend beyond 2 years after exit day: c.7(7).

International obligations

At the moment, we get a lot of our law third-hand. An international treaty, say on transhipment of waste, sets some rules. The EU adopts and adapts those rules, and makes a regulation about it. We then make a regulation setting out the domestic arrangements for enforcement of that EU regulation.

Cl.8 authorises ministers to make regulations to prevent or remedy any breach arising out of the UK’s withdrawal from EU of the UK’s international obligations. So, on my example, the minister could disavow the EU  regulation, and simply incorporate directly the international obligation by regulation.


Here is an area to watch, and one which does not seem to have surfaced in the first flood of comments on the Bill. In many areas of litigation, a claim relying on a provision of EU law may have more teeth than the equivalent domestic cause of action. Tucked away in Schedule 1, para.3(1)  abolishes rights of action based upon a failure to comply with any of the general principles of EU law, and 3(2) does likewise to EU challenges to other rules of law. Para.4 says that

there is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich,

namely the right to sue a public authority in damages for an egregious breach of its EU obligations.

The only tempering of this is for actions begun but not finally decided by a court before exit day: even further tucked away in Schedule 8, para.27.

Note that this scheme ignores when the breach of EU law might have occurred, and hence has obvious retrospective effect. Let us assume that government has been egregiously in breach of a Directive for some years, both before and after exit day. Government escapes any liability under the Francovich principle for past and future breaches, unless the litigant has issued his claim before exit day. Cue flood of protective proceedings issued as exit day looms.

This seems to be a blatant way of Government seeking to avoid responsibilities for past breaches which is nothing to do with the underlying purpose of the Bill. It is to be hoped that a fairer balance between past and future grounds for complaint emerges during the legislative process.


These are very much first thoughts, but, given that Government has picked two major fights in the drafting of this Bill, in getting rid of the Charter and in gunning for a Henry VIII clause broader than that monarch’s stomach, I am not being particularly prophetic in seeing that debates in both Houses will be long-running. It is certainly bound to be more controversial in the Commons than the March 2017 Article 50 Notification Act here. And the longer the debates go on, the less time there will be between enactment and the Article 50 deadline of 29 March 2019.


  1. […] derivadas da UE devem ser aplicadas em um mundo pós-Brexit. Como eu indiquei na minha postagem aqui há tentativas no projeto de lei para se livrar de reivindicações de cidadãos que dependem […]

  2. Vivek Kumar says:

    I suspect reversing the Charter exclusion will be an easy concession for the Government during the passage of the Bill.

  3. tureksite says:

    In the immortal words of A.P. Herbert:

    If anything shall seem
    The Minister may deem.
    His certificate of demption
    Shall confer complete exemption

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: