The European Union (Withdrawal) Act (or “EUWA”; originally styled the “Great Repeal Bill”) passed into law in June 2018 after much parliamentary debate and amendment. EUWA in effect establishes the main underpinning legal framework for the UK’s departure from the European Union. Whilst the UK famously does not have a written constitution, EUWA like the European Communities Act before it, has great significance for the UK’s constitutional arrangements.
Whilst the UK is set to leave the EU in principle on 29 March 2019, EUWA seeks to avoid a legislative cliff edge on exit day through a range of mechanisms intended to ensure the continued functioning of the UK statute book. Unsurprisingly, this is not a simple exercise.
If the Government successfully negotiates a Withdrawal Agreement which is ratified by Parliament, a further law will be enacted, which is expected to be titled the European Union (Withdrawal Agreement) Act (“the WAA”). The Government has said that the WAA will make amendments to EUWA.
1. Repeal of the European Communities Act
Section 1 reads as follows: “The European Communities Act 1972 is repealed on exit day”. The European Communities Act is the principal UK legislation giving effect to EU law in the UK.
EUWA fixes “exit day” not as a whole day, but as 11pm on 29 March 2019. EUWA permits the Government to amend exit day by regulation, subject to Parliamentary approval, in limited circumstances (in effect, where the EU27 and UK agree to extend the Article 50 notice period). In a scenario where a Withdrawal Agreement is reached, it is expected the WAA will keep the effects of the European Communities Act “live” until the end of the transition or implementation period, currently expected to be 31 December 2020.
2. Preservation of “EU-derived domestic legislation”
Subject to minor exceptions, EUWA will preserve after exit day all legislation made under the European Communities Act – ie secondary legislation made (in whole or in part) to implement EU law that does not take direct effect. Otherwise this would all fall away when the ECA is repealed.
The EUWA will also preserve all other legislation made to comply with EU law, even though the powers in the ECA were not used.
A future Parliament would be able to amend this preserved legislation, subject to any provisions in a Withdrawal Agreement or Future Partnership Agreement.
3. A giant cut and paste exercise for direct EU law
Some EU law has “direct effect” in the UK and can, pre-Brexit, be relied on in UK courts without requiring further UK legislation. Examples include EU Regulations, such as the General Data Protection Regulation, and provisions of treaties that have direct effect (for example the right to equal pay between the genders). Broadly speaking, EUWA provides that all direct EU law operative at exit day (except those provisions that need to be changed to accommodate any Brexit deal) will be incorporated into UK law.
Identifying this body of “converted” legislation will not be easy. The explanatory notes published with the Act give a good idea of the provisions of the EU Treaties that the Government currently thinks will be converted into UK law in this way.
4. A new status for EU case law
Decisions of the EU courts prior to exit day will be given the same status as judgments from the UK’s Supreme Court. That means that they will be binding on all the nation’s lower courts, and only departed from by the Supreme Court in exceptional circumstances. However this body of case law will only continue to be relevant if it concerns the interpretation of “retained EU law” – ie EU law preserved or incorporated into UK law by EUWA.
5. A massive legislative task
Parliament accepted that saving or cutting and pasting would not be sufficient for much of the EU legislation preserved or newly incorporated into domestic law by EUWA. Further adjustments are required to make it work in its new setting – for example replacing references to EU-wide institutions with the new UK equivalent. Given the volume of EU legislation we are dealing with, these adjustments will need to be made by secondary legislation. The Government has said that over 800 draft statutory instruments will be required under EUWA, with an additional “low hundreds” of statutory instruments also required under other Brexit related legislation, such as that relating to customs and trade. This is a massive legislative task, with special parliamentary procedures intended to speed up the usual process.
6. New rules of interpretation
At present the European Communities Act establishes a clear rule that EU law takes precedence over domestic law. The repeal of the ECA will mean that this will no longer be the case for new legislation, but it will continue to apply to domestic legislation made prior to Brexit. The same principle can also apply where existing domestic legislation is “modified” after Brexit provided such interpretation is consistent with the intention of the modifications.
7. A huge publication job
EUWA stipulates how the body of EU law converted into UK law must be published, to help ensure there is certainty as to which version of EU law applies. It will no longer be possible to rely on the relevant EU websites, since the corpus of EU law by which the UK is currently bound will begin to diverge after Brexit.
8. Complex transitional provisions
EUWA provides some mechanisms to deal with transitional arrangements. For example, it preserves rights which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before exit day but are decided on or after it.
Other aspects of the mechanics of the transitional period may be addressed in the ongoing negotiations between the UK and EU27. The European Court of Justice and the UK courts will also have a role in determining certain aspects of the transitional arrangements.
9. Parliamentary approval of the outcome of negotiations with the EU
Last but not least, EUWA specifies conditions for the ratification of any Withdrawal Agreement. These include a requirement that both the Withdrawal Agreement and a framework for the future relationship must be approved by a resolution of the House of Commons and be debated in the House of Lords. A further condition is that an Act of Parliament must have been passed enabling the Withdrawal Agreement to be implemented, the WAA referred to above.
If the Commons does not approve the outcome of negotiations, within 21 days the Government is required to make a statement on how it intends to proceed in relation to its negotiations with the EU, with provision for further vote by the Commons on the proposal.
If the Prime Minister makes a statement on or before 21 January 2019 that no agreement can be reached in principle on the Withdrawal Agreement and framework for future relationship, a statement of the Government’s intention must be made within 14 days, again with provision for a further vote by the Commons on the proposal.
If by the end of 21 January 2019 there is no agreement in principle on the withdrawal agreement and framework for the future relationship, the Government must make a statement as to its intentions within 5 days, with provision for this to be considered by Parliament.