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EU (Withdrawal) Act 2018

EU (Withdrawal) Act 2018

The European Union (Withdrawal) Bill was introduced on 13 July 2017.  The EU (Withdrawal) Act 2018 (EUWA 2018) received Royal Assent on 26 June 2018. The EUWA 2018 is intended to repeal the European Communities Act 1972 (ECA) on the day the United Kingdom leaves the European Union. It is also intended to end the supremacy of European Union (EU) law in UK law, convert EU law as it stands at the moment of exit into domestic law, and preserves laws made in the UK to implement EU obligations. 

The EUWA 2018 also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. It also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the TEU once the UK leaves the EU, subject to the prior enactment of a statute by the UK Parliament approving the final terms of withdrawal.

Commencement:  Deal and no deal scenarios

Most of the Act’s provisions will come into force on ‘exit day’.  Following the agreement reached between the UK Government and the European Council under Article 50(3) TEU, regulations made under section 20(4) of the Act provide that the definition of exit day in section 20(1) has been amended to 31 October 2019 at 11.00 pm.  If the UK and the EU have not been able to agree the terms of a withdrawal agreement before 31 October 2019, and there has been no further extension, Article 50 TEU provides that the Treaties will cease to apply to the UK from this date.  This is often described as a ‘no deal scenario’.   

If the UK leaves the EU with a deal (i.e. on the basis of the withdrawal agreement that was concluded with the EU in November 2018, or something similar) then the withdrawal agreement provides for a transition period during which the large majority of EU law will apply in full in the UK (see below).  

Principal provisions of the EU (Withdrawal) Act

Section 1 repeals the European Communities Act 1972 on exit day.

Sections 2 to 7 deal with the retention of existing EU law.  (See below “Retained EU law”)

Sections 8 and 9 contain the main powers of UK Government Ministers in connection with withdrawal, including dealing with deficiencies in retained EU law arising from the withdrawal of the United Kingdom from the EU.

Sections 10 to 12 relate to devolution:

Section 10 relates to Northern Ireland and the continuation of North-South co-operation and the prevention of new border arrangements.  

Section 11 introduces Schedule 2 which confers powers on devolved authorities to make regulations, which correspond to the powers conferred by sections 8 and 9.  Part 1 of Schedule 2 confers powers on the Welsh Ministers to make regulations dealing with deficiencies in retained EU law (see below “Powers to correct ‘deficiencies’ in retained  EU law”).

Section 12 makes amendments to devolution legislation (including the Government of Wales Act 2006) which replace the restrictions on legislating incompatibly with EU law with restrictions relating to retained EU law.  Section 12 also introduces Schedule 3, which makes corresponding provision in relation to executive competence (see below “Restrictions on devolved competence”).

Section 13 contains provisions dealing with parliamentary approval of the outcome of negotiations with the EU (see below “Withdrawal Agreement and Transition Period”).

Section 14 introduces Schedule 4.  Part 1 of Schedule 4 (charging in connection with certain new functions) gives a Minister of the Crown and devolved authorities (including the Welsh Ministers) a power to make secondary legislation to enable public authorities to charge fees and other charges.  This power applies where a public authority has a new function as a result of regulations made under section 8 or 9 (for Ministers of the Crown) or under Part 1 or Part 2 of Schedule 2 (for devolved authorities).

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