Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.' The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things. Clauses 2 to 6 are concerned with Retention of Existing EU law. The Explanatory Notes offer assistance with their interpretation.
The key source of EU law is the Treaties by which Member States have conferred various competencies upon the EU including the ability to make law in order to implement those competencies - EU Treaties Consolidated Version. The EU adopts regulations, directives, decisions, recommendations and opinions.
Regulations have general application and are binding in their entirety and they are directly applicable in all member States. This form of EU law has force in the UK because of section 2(1) of the European Communities Act 1972 -(the ECA). "Directly applicable" means that the EU enactment leaves no discretion to the Member States but, rather, confers rights and duties within the Member States without further legislative participation. In practice, the UK has often made domestic legislation regarding implementation within the UK of EU Regulations.
One example of EU Regulation is Regulation 261/2004 - Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. Those EU Regulations required Member States to lay down rules regarding sanctions for infringement and the UK did this by enacting the Civil Aviation (Denied Boarding, Compensation and Assistance Regulations 2005.
Directives are binding, as to the result to be achieved, upon each member state to which they are addressed, but leave to the national authorities the choice of form or methods. One of the main ways by which directives have been implemented in the UK is by use of the power in section 2(2) of the ECA but it is not the only method that has been used. For example, domestic health and safety law is often made to implement EU obligations but is normally made under the powers in the Health and Safety at Work etc. Act 1974 rather than the ECA.
An example of use of the power under ECA section 2(2) is The Waste Electrical Electronic and Equipment Regulations 2013 which implement Directive 2012/19/EU.
EU law provisions can sometimes have Direct Effect meaning that the provision automatically confers legal rights on individuals which are enforceable against the Member State government and certain other bodies. Whether a Treaty Article or other EU law provision has direct effect depends on whether it is "sufficiently precise, clear and unconditional."
Clause 2 of the Withdrawal Bill deals with the retention of "EU-derived domestic legislation." The definition of this term is complex. Here is the Clause as at the time of writing (11th August 2017):
Generally, secondary legislation lapses automatically when the primary legislation under which it is made ceases to have effect, unless saved expressly. For instance, domestic legislation made under the ECA section 2(2) to implement (say) a directive would lapse if the ECA were to be simply repealed. Clause 2 will ensure that such legislation continues to have legal effect but under the terms imposed by the Withdrawal Act.
Clause 2 receives a fuller explanation in the Explanatory Notes - HERE.
Clause 3 deals with the retention of "Direct EU legislation." Again, the definition is complex but it will ensure that most EU Regulations continue to be applicable to the UK but under the terms imposed by the Withdrawal Act.
Clause 3 receives a fuller explanation in the Explanatory Notes - HERE
Here is the Clause as at the time of writing (11th August 2017):
Clause 4 ensures that any remaining EU rights and obligations which do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties.
Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional to confer rights directly on individuals which can be relied on in national law without the need for implementing measures. Where directly effective rights are converted under this clause, it is the right which is converted, not the text of the article itself.
Clause 4 is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).
The Explanatory Notes (HERE) provide a list of Treaty Articles considered by the Government to contain directly effective rights which would be converted into domestic law as a result of this clause. The list is said to be an illustrative list and is not intended to be exhaustive.
Deals with two matters:
A] Clause 5 addresses the principle of supremacy of EU law which means that domestic law must give way if it is inconsistent with EU law. In the UK this can mean that a court must disapply an Act of Parliament, or a rule of the common law, or strike down UK secondary legislation even if the domestic law was made after the relevant EU law.
This principle will no longer apply to legislation passed or made on or after exit day (an Act is passed when it receives Royal Assent). Although the principle existed at the time of accession to the Treaties, it took a long time for the English legal system to accept it and perhaps only eventually did so with the Factortame litigation.
If a conflict arises between pre-exit domestic legislation and retained EU law, the supremacy of EU law will, where relevant, continue to apply as it did before exit.
Whether it is wise to hang on to the EU Law concept of "supremacy" is perhaps something for legislators to consider and perhaps some alternative might be found.
B] A further matter dealt with by Clause 5 is the EU Charter on Fundamental Rights. Clause 5(4) states - "The Charter of Fundamental Rights is not part of domestic law on or after exit day." Whilst this is no doubt included for political reasons it raises an interesting question given that one objective of the Bill is to keep legal continuity. At present, the Charter is relevant when applying EU law but its removal will place the courts in the position of having to decide how its removal affects the meaning of retained EU law.
Clause 5(5) makes clear that, whilst the Charter will not form part of domestic law after exit, this does not remove any underlying fundamental rights or principles which exist irrespective of the Charter, and EU law which is converted will continue to be interpreted in light of those underlying rights and principles.
Clause 5(6) states that - "Schedule 1 (which makes further provision about exceptions to savings and incorporation) has effect." Schedule 1 contains some important provisions and is the subject of a further post - HERE.
Clause 5 receives a fuller explanation in the Explanatory Notes - HERE
Clause 6 deals with Interpretation of Retained EU law. This Clause will merit a separate post. It is addressed in the Explanatory Notes - HERE.
Government Fact Sheets - Information about the Repeal Bill