Guidance

EU Exit secondary legislation laid with impacts on local government

Statutory instruments which have been laid and identified as having impacts on local authorities.

Please note that this list is meant as a guide only and is not exhaustive: it is not legal advice - each authority should consult its legal advisors to ensure that any necessary amendments are made to its policies, procedures and delegations.

A full list of EU exit related secondary legislation can be found on the government legislation site

European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 (the EUWA) will end the supremacy of EU law in UK law, will convert directly applicable EU legislation (in particular, EU Regulations and Decisions) as it stands at the moment of exit into domestic law, and will preserve legislation previously made in the UK to implement EU obligations.

The legislation will generally have the same effect that it had before the UK left the EU, unless or until it is changed by Parliament. Some has been amended by Statutory Instruments (SIs) made under the EUWA. This is because the EUWA creates powers to make secondary legislation to correct “retained EU law” to ensure that the legislation will work properly once the UK has left the EU.

Paragraph 37 of Schedule 8 to the European Withdrawal Act is a “transitional and saving” provision which provides that anything done or in force before exit day (or in in the process of being done), and which relates to any element of retained EU law is preserved. For example, licences lawfully issued before exit day would continue to have effect after exit day.

Paragraph 37 will apply to local authority schemes of delegation which are in place immediately before exit day, to the extent to which those schemes relate to retained EU law. Any new schemes of delegations (or changes to schemes) after exit day would need to be formulated with regard to retained EU law, as applicable in each case. Consideration of paragraph 37 will help inform local authorities’ own legal view on these matters.

Additional guidance from Defra

In many cases, the amendments in secondary legislation made by Defra will not result in substantive changes to the meaning and effect of the law. However, in some cases, the changes being made will mean that different rules will apply after exit.

Such changes may affect the content of current guidance or the format of statutory forms. This means that local authorities will need to determine how best to review their guidance and documentation and amend it as required to reflect the changes in the law.

In the short term, it may be sensible to include a note at the start of all documents making clear that they may not be up to date in light of EU exit. This will put the onus on the reader to ensure that they are aware of any changes to the rules.

Local authorities can then in slower time review and revise their documentation, dealing with the policy areas where there are substantive changes first. It is a matter for each local authority to take their own legal advice on what changes are required.

Defra EU Exit Statutory Instruments

Waste

Air quality

Fisheries

Environment

Common Agricultural Policy

Animal and plant products

Fertilisers, chemicals and pesticides

Other government departments’ EU Exit Statutory Instruments

Food and product Safety

Chemical and genetically modified organisms

Consumer protection and enforcement

Planning and Construction

Childcare, child maintenance and child protection

Access to services

Employees and operations

Please contact LGEngagement@communities.gov.uk if you have comments, questions or if you think that there is anything missing from this list.

Published 5 April 2019