It is an Act to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU. Its progress through Parliament commenced on 13 July 2017 and is recorded HERE. The Bill, as first introduced, is HERE. The Act contains 25 sections and 9 Schedules. This post is an overview of the Act. Further articles and blogposts are inevitable and I will add links at the end of this post as and when they become available.
The Act defines Exit Day; provides for legal continuity when Brexit takes place; gives Ministers enormous law-making powers to deal with Withdrawal from the EU; makes important provision relating to devolution; provides for Parliament to approve the negotiated withdrawal agreement and the framework for the future relationship. Various other matters are also addressed.
The Scottish Parliament did not give legislative consent to this Act - Holyrood 15th May. The UK Parliament is within its legal rights to legislate without this consent but the political implications of doing so remain to be seen. The National Assembly for Wales gave its consent to the legislation. Northern Ireland has been without a functioning devolved Assembly and Executive since January 2017 - Belfast Telegraph 2 September 2017.
Exit Day:
By section 1, the European Communities Act 1972 is repealed on exit day. Section 20 (Interpretation) defines “exit day” as 29 March 2019 at 11.00 p.m. but a Minister of the Crown is empowered to amend the definition of exit day if some other date and time is agreed - see section 20(2) to 20(5).
According to the Supreme Court in R (Miller and another) v Secretary of State for Exiting the EU [2017] UKSC 5, the ECA is the “conduit pipe” by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law - (para 65).
Section 1 will require a Commencement Order to bring it into force. [Section 25 deals with Commencement]. The definition of "Exit Day" came into force when the Act was passed.
Retention of existing EU law:
Sections 2 to 7. The general aim is to ensure that there is legal continuity after exit day. This is achieved at the price of considerable complexity and this is due, in part, to the need to address the various types of EU legislation. This is real "dry-as-dust" legalistic material but could well be productive of considerable litigation. The following is just a very brief outline.
Section 2 - EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day. "EU-derived domestic legislation" is defined in section 2(2)
Section 3 - Direct EU legislation, so far as operative immediately
before exit day, forms part of domestic law on and after exit day. "Direct EU legislation" is defined in section 3(2).
Section 4 - Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day - (a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and (b) are enforced, allowed and followed accordingly, continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).
Section 5 - is headed "Exceptions to savings and incorporation."
The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day - but see section 5(2) and 5(3).
The Charter of Fundamental Rights is not part of domestic law on or after exit day - section 5(4) but also see section 5(5).
Section 5(6) gives effect to Schedule 1 - Further provision about exceptions to savings and incorporation - and note here Schedule 1 para 1 Challenge to validity of retained EU law; para 2 General Principles of EU law and para 3 The Rule in Francovich.
Section 6 - Interpretation of retained law - A court or tribunal - (a) is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and (b) cannot refer any matter to the European Court on or after exit day.
Section 7 - Status of retained law - Anything which (a) was, immediately before exit day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and (b) continues to be domestic law on and after exit day by virtue of section 2, continues to be domestic law as an enactment of the same kind. The section goes on to state how such retained law may be modified. Section 7 is the outcome of concerns raised during the autumn of 2017 - see Research Briefing: Retained EU Law - 10 November 2017
The European Union (Withdrawal) Bill: Retained EU law (
PDF, 804.91 KB)
Commons Library Briefing - The status of retained EU law
Main powers in connection with withdrawal:
Section 8 - Dealing with deficiencies arising from withdrawal - A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate - (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.
Here is the first of the Henry VIII powers in the Act - "Regulations may make any provision that could be made by an Act of Parliament" but there are certain exceptions.
Section 9 - Implementing the withdrawal agreement - A further Henry VIII power - A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the EU.
The section 9 power will therefore only be available to Ministers when Parliament has enacted a statute approving the final terms of the UK's withdrawal.
Devolution:
Sections 10 to 12 apply to Devolution to Scotland, Wales and Northern Ireland. Section 10 - continues North-South co-operation between Ireland and Northern Ireland and prevents new border arrangements being implemented by Ministers using their Regulation-making powers under the Act.
Parliamentary approval of outcome of EU negotiations:
Section 13 - this is the outcome of the hard-fought "meaningful vote" debate considered in this previous post. The major concern was that Parliament should have its say on any any withdrawal agreement with the EU.
Section 13(1) provides that the withdrawal agreement may be ratified only if -
(a) a Minister of the Crown has laid before each House of Parliament - (i) a statement that political agreement has been reached, (ii) a copy of the negotiated withdrawal agreement, and (iii) a copy of the framework for the future relationship,
(b) the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown,
(c) a motion for the House of Lords to take note of the negotiated withdrawal agreement and the framework for the future relationship has been tabled in the House of Lords by a Minister of the Crown and - (i) the House of Lords has debated the motion, or (ii) the House of Lords has not concluded a debate on the motion before the end of the period of five Lords sitting days beginning with the first Lords sitting day after the day on which the House of Commons passes the resolution mentioned in paragraph (b), and
(d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement.
A matter NOT addressed by the Act is what would happen if a withdrawal agreement is not reached or, if reached, is rejected by the House of Commons. In such circumstances would the Commons wish to see the UK leave the EU on Exit Day which is, after all, the default position under Article 50 TEU? It is a pity that the legislation does not make provision to address this.
Financial and other matters:
Section 14 to 19 address a variety of issues.
Section 14 (and Schedule 4) - Financial provision
Section 15 (and Schedule 5) - Publication and Rules of Evidence
Section 16 - Maintenance of Environmental Principles
Section 17 - Family unity for those seeking asylum or other protection in Europe
Section 18 - the UK will leave the EU and that includes leaving the EU Single Market and Customs Union. Section 18 is concerned with the steps to be taken to seek an agreement for the UK to "participate in a customs arrangement with the EU"
(1) A Minister of the Crown must lay before each House of Parliament a statement in writing outlining the steps taken by Her Majesty’s Government, in negotiations under Article 50(2) of the Treaty on European Union, to seek to negotiate an agreement, as part of the framework for the United Kingdom’s future relationship with the EU, for the United Kingdom to participate in a customs arrangement with the EU.
(2) The statement under subsection (1) must be laid before both Houses of Parliament before the end of 31 October 2018.
Section 19 - Future interaction with the law and agencies of the EU
General and Final Provision:
Sections 20 to 25.
Section 20 - Interpretation
Section 21 - Index of defined expressions
Section 22 - Regulations
Section 23 - Consequential and transitional provision - This provides (see Schedule 9) for the repeal of some important EU-related legislation including the European Parliamentary Elections Act 2002 and the European Union Act 2011.
Section 24 - Extent
Section 25 - Commencement and Short title
The Schedules:
Schedule 1 - Further provision about exceptions to savings and incorporation
Schedule 2 - Corresponding powers involving devolved authorities
Schedule 3 - Further amendments of devolution legislation and reporting requirement
Schedule 4 - Powers in connection with fees and charges
Schedule 5 - Publication and rules of evidence
Schedule 6 - Instruments which are exempt EU instruments
Schedule 7 - Regulations
Schedule 8 - Consequential, transitional, transitory and saving provision
Schedule 9 - Additional repeals
Other legislation:
See the other Bills dealing with implementation of Brexit - Institute for Government
Links:
Public Law for Everyone - Professor Mark Elliott - 1,000 words/The European Union (Withdrawal) Act 2018
ICLR Weekly Notes 2nd July
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