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Legal concerns for UK after Brexit raised

20 March 2018

What will happen if the UK disagrees with the EU over a new European law during the transition period, asks the European Scrutiny Committee in its report, European withdrawal: Transitional provisions and dispute resolution.

The report examines scrutiny of EU legislation during the implementation period and other legal concerns arising from the ongoing Brexit negotiations. The Committee met Mr Michel Barnier in Brussels on Monday 12 March 2018 before concluding the report.

What are the safeguards?

The Committee is asking for greater clarity on what unilateral safeguards would be available to the UK during the implementation period if it had to apply new law which it considered to be detrimental. The report also examines the potential role of the ECJ in resolving disputes during the implementation period and after exit.

Court of Justice in dispute jurisdiction

The Government needs to clarify the distinction between direct and indirect jurisdiction of the Court of Justice in dispute jurisdiction for the EU-UK withdrawal and future relations agreements.

UK domestic courts and the disapplication of primary legislation

The Committee is concerned about the provision in the EU (Withdrawal) Bill which would give UK domestic courts the power after the UK's exit from the EU to disapply pre-exit primary legislation.

Parliamentary scrutiny

The report recommends that the Government engages in dialogue with both Houses on how parliamentary scrutiny of EU legislation may best be achieved during the implementation period.

Chair's comment

Sir William Cash, Chair of the Committee, says

"We believe that Article 50 has fundamentally changed the basis of the EU treaties. The Government must be more robust and emphatic in refuting the assertions made by the European Council and the European Commission relating to any future role of the European Court of Justice. We do not consider that the UK domestic courts should be given a power after the UK's exit from the EU to disapply pre-exit primary legislation. As to a dispute resolution mechanism we agree with a free standing court (an International Treaties court) to act as a central point providing guidance to non-specialist courts and tribunals throughout the UK on the interpretation of UK legislation which implements the Withdrawal Agreement. We remain concerned, as were our predecessor European Scrutiny Committee, about the way in which EU legislation in Brussels is made behind closed doors and by consensus in the Council of Ministers."

Further information

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