Brexit: UK Government publishes first batch of Withdrawal Act orders to amend the law

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.