The EU (Withdrawal) Bill: Conceptual, Substantive and Procedural Problems

UPDATE: You can now read all the posts in the series, first on the conceptual problems, then on the substantive problems, and finally on the procedural problems.

The European Union (Withdrawal) Bill is currently making its way through Parliament. Unsurprisingly, the Bill survived Second Reading. Unsurprisingly, because failure to legislate for Brexit would cause chaos in the United Kingdom in March 2019: as such, it is not plausible to reject the principle of the Bill, whatever one’s views of the merits of Brexit.

However, one might legitimately have serious concerns about the content of the Bill — again, regardless of one’s position on Brexit itself. These concerns are likely to be aired in the coming weeks and months, when the Bill moves to Committee Stage and to the House of Lords. In particular, the House of Lords is in a relatively strong institutional position to amend the content of the Bill. There is simply insufficient time to resort to the Parliament Acts and legislate without the Lords in time for Brexit: the Upper House will have to agree, and the price of its agreement might very well be the making of significant amendments to the content of the Bill.

The current problems with the Bill can be grouped under three headings — conceptual, substantive and procedural — which I hope to elaborate on in a series of posts over the coming week. Briefly, the conceptual problems relate to the way the Bill deals with important issues, such as incorporated EU law and devolution; the substantive problems relate to the powers the Bill confers on Ministers; and the procedural problems relate to the inadequate scrutiny mechanisms proposed in the Bill.

To say that the Bill is plagued with problems is not necessarily a criticism of the drafters of the legislation. Drafting in the shadow of Eurosceptics (in Parliament, the press and the broader public) is not an easy task. For instance, there is no doubt in my mind that the drafters looked warily over their shoulders before making indirect references to the principle of the supremacy of EU law (clause 6), without which the provisions to be imported into domestic law would make little sense, knowing that forthright incorporation of the principle would cause conniptions in some quarters.

Those interested in reading further can usefully consult the resources collected by my colleague, Professor Mark Elliott, in an invaluable post.


The latest Golau Podcast has a very interesting contribution from the Director of Legal Advisors in the Department for Exiting the European Union:

This content has been updated on November 13, 2017 at 09:28.