European Union (Withdrawal) Act 2018


The European Union Act 2018 is an act of the Parliament of the United Kingdom to repeal the European Communities Act 1972, and for parliamentary approval to be required for any withdrawal agreement negotiated between the Government of the United Kingdom and the European Union. Initially proposed as the Great Repeal Bill, its passage through both Houses of Parliament was completed on 20 June 2018 and it became law by Royal Assent on 26 June.
The act is to enable "cutting off the source of EU law in the UK ... and remove the competence of EU institutions to legislate for the UK". The 2017–2019 Government of Theresa May regarded it as the most significant constitutional legislation to have been passed by Parliament since the European Communities Act itself in 1972.
To provide legal continuity, the act enables the transposition of directly-applicable already-existing EU law into UK law, and so "create a new category of domestic law for the United Kingdom: retained EU law". It also gives the government some restricted power to adapt and remove laws that are no longer relevant.
It makes future ratification of the withdrawal agreement, as a treaty between the UK and EU, depend upon the prior enactment of another act of Parliament to approve the final terms of withdrawal when Brexit negotiations are completed. It fixed 21 January 2019 as the day on which the government must decide on how to proceed if the negotiations had not reached agreement in principle, on both the withdrawal arrangements and the framework for the future relationship between the UK and EU, and for parliamentary debate on this Government decision.
The act was one of a number of planned pieces of legislation affecting international transactions and control of borders, including movement of goods.
The act came fully into force on Friday 31 January 2020 at 23:00 Greenwich Mean Time, although it was amended by the European Union Act 2020 which saved the effect of the European Communities Act 1972 during the implementation period and formally ratified and incorporated the Withdrawal Agreement into domestic law after the United Kingdom formally left the European Union.

Provisions

Repealing ECA 1972 and ratifying withdrawal agreement

The act is made in connection with the withdrawal of the United Kingdom from the European Union on 29 March 2019, the second anniversary of notice of withdrawal under Article 50 of the Treaty on European Union. The act provides for ratifying and implementing the agreement setting out the withdrawal arrangements. The mandatory period for negotiating the agreement is stated in the EU negotiating directives as ending "at the latest on 30 March 2019 at 00:00 " —i.e. Central European Time— "unless the European Council, in agreement with the United Kingdom, unanimously decides to extend this period in accordance with Article 50 of the Treaty on European Union".
The act legislates for the following:
  • repeal of the European Communities Act 1972.
  • fixing "exit day", naming the hour for this as 11 p.m. on 29 March 2019.
  • formal incorporation and adaptation of up to 20,000 pieces of EU law onto the UK statute book by:
  • creating powers to make commencement orders and other secondary legislation under statutory instrument procedures.
  • Parliamentary approval of the outcome of the government's negotiations with the EU under Article 50 of the Treaty on European Union.

    Parliamentary approval: section 13

The act's section 13 contains a set of mandatory procedures for Parliament's approval to the various possible outcomes of the government's negotiations with the EU. One outcome is that there will be an agreement between the United Kingdom and the EU under Article 50 of the Treaty on European Union which sets out the arrangements for the United Kingdom's withdrawal from the EU. In the act the agreement is called the withdrawal agreement. The act provides that before the withdrawal agreement can be ratified, as a treaty between the United Kingdom and the European Union, an act of Parliament must have been passed which provides for its implementation. The act allows regulations to be made and in force on or before exit day for the purpose of implementing the withdrawal agreement, but only if by then an act of Parliament has been enacted "approving the final terms of withdrawal of the United Kingdom from the EU".
An analysis of the process set out in the act published by the Institute for Government discusses the procedure for approving treaties that is set out in the Constitutional Reform and Governance Act 2010 which may apply to the withdrawal agreement and the framework agreement for future relations, depending on what they contain. The procedure could prevent ratification, but in exceptional cases a government may ratify a treaty without consulting Parliament.
Alternatively, if by Monday 21 January 2019 – less than eleven weeks before the mandatory negotiating period ends on Friday 29 March – there is no agreement in principle in the negotiations on the substance of the withdrawal arrangements and the framework for the future relationship between the EU and the United Kingdom, the government must publish a statement setting out how the government proposes to proceed, and must arrange for debate about that in Parliament within days.
The approval provisions use certain words in special ways:
  • "a motion in neutral terms" is used three times in section 13 and is not defined in the act, but a document dated 21 June 2018 setting out the government's understanding stated "Under the Standing Orders of the House of Commons it will be for the Speaker to determine whether a motion when it is introduced by the Government under the European Union Bill is or is not in fact cast in neutral terms and hence whether the motion is or is not amendable. The Government recognises that it is open for Ministers and members of the House of Commons to table motions on and debate matters of concern and that, as is the convention, parliamentary time will be provided for this."
  • "a statement that political agreement has been reached" is used three times in section 13, and defined as a Minister's written statement that, in the Minister's opinion, "an agreement in principle has been reached in negotiations under Article 50 of the Treaty on European Union on the substance of the arrangements for the United Kingdom's withdrawal from the EU, and the framework for the future relationship between the EU and the United Kingdom after withdrawal".

    Coming into force: section 25

The sections of the act that came into force immediately when the act passed into law on 26 June 2018, as listed in section 25, include:
  • 8 Dealing with deficiencies arising from withdrawal
  • 9 Implementing the withdrawal agreement
  • 10 Continuation of North-South co-operation in Ireland and the prevention of new border arrangements
  • 11 Powers involving devolved authorities corresponding to sections 8 and 9
  • 16 Maintenance of environmental principles etc.
  • 17 Family unity for those seeking asylum or other protection in Europe
  • 18 Customs arrangement as part of the framework for the future relationship
  • 20 Interpretation
  • 21 Index of defined expressions
  • 22 Regulations
  • 23 Consequential and transitional provision, except subsection
  • 24 Extent.
  • 25 Commencement and short title.
Subsections and relate to the devolved administrations of Northern Ireland, Scotland and Wales. Subsection provides for bringing into force by government regulation the remaining provisions of the act, including:
  • 1 Repeal of the European Communities Act 1972
  • 2 Saving for EU-derived domestic legislation
  • 3 Incorporation of direct EU legislation
  • 4 Saving for rights etc. under section 2 of the ECA
  • 5 Exceptions to savings and incorporation
  • 6 Interpretation of retained EU law
  • 7 Status of retained EU law
  • 13 Parliamentary approval of the outcome of negotiations with the EU
  • 14 Financial provision
  • 15 Publication and rules of evidence
  • 19 Future interaction with the law and agencies of the EU.
No regulation for bringing any of those provisions into force was made before the end of June 2018.

Exit day

Exit day is the date and time defined in UK legislation for the switch from EU law to UK law, the main changes being to repeal the European Communities Act 1972 and to bring retained EU law into effect. It does not affect when the UK leaves the EU, but the intention is that it is synchronised with that event. Exit day was 23:00 GMT on 31 January 2020. The act has been amended to update the definition of "exit day" to align with extensions to Article 50. Exit day was first varied to 12 April 2019, 22 May, and then to 31 October 2019. It was also amended by the European Union Act 2019 to make such amendments mandatory rather than discretionary.

EU case law

Before exit day, case law emanating from the Court of Justice of the European Union is binding on UK courts. The act will have ECJ case law retained as part of the law, but it will no longer be binding on the courts and tribunals of the United Kingdom. The legislation permits courts to depart from ECJ caselaw after applying the same test as they would apply in deciding whether to depart from their own case law.

Human rights laws

The act makes explicit in section 5 that the Charter of Fundamental Rights of the European Union will cease to be a part of UK law after Brexit.

Additional repeals

Repeal of other acts include:
  • European Communities Act 1979
  • European Communities Act 1985
  • European Union Act 1994
  • European Union Act 2003
  • European Union Act 2006
  • European Union Act 2013
  • European Parliamentary Elections Act 2002
  • European Parliament Act 2003
  • European Union Act 2008
  • European Union Act 2011
  • European Union Act 2012
  • European Union Act 2013
  • European Union Act 2014
  • European Union Act 2015
  • European Union Act 2017
  • European Union Act 2015
  • Sections 82 and 88 of the Serious Crime Act 2015