The European Union (Withdrawal) Act 2018 sets out how EU law will be incorporated into domestic law as of the day the UK leaves the EU. In this article, we examine how the Act will have a particular impact on public and administrative law in the UK. It will explore why courts will no longer have the power to make declarations of invalidity or incompatibility, or award Francovich damages. We will also consider what this Act means for the principle of proportionality and its application in judicial review in the future. Finally, we will discuss the broad nature of the Henry VIII powers conferred by the Act, and the role that public law might have in keeping those powers in check.
2.Pre-Brexit position: UK law under the EU
The piece of legislation which brought the United Kingdom ("UK") into the European Union ("EU") was the European Communities Act 1972 ("ECA"). The ECA implements the Treaty on the Functioning of the European Union ("TFEU") and sets out the procedure by which EU law will apply in the UK.
Under the ECA, EU law which is directly applicable or has direct effect (such as EU Treaties or EU Regulations) will be automatically incorporated "without further enactment" and will be binding in UK law. On the other hand, EU law which is not directly applicable and does not have direct effect (such as EU Directives) will be given effect in UK law by means of secondary (or delegated) legislations, such as statutory instruments. Moreover, the ECA states that questions as to the meaning of an EU instrument shall be treated as a question of law, and should be referred to the Court of Justice of the European Union ("CJEU"), or should be determined by national courts in accordance with the principles and decisions laid down by the CJE
Moreover, the ECA provides that following the enactment of the ECA, all primary legislation passed by Parliament will be construed by the courts and take effect subject to the requirements of EU law. Therefore, by virtue of the ECA, the courts are obliged to disapply legislation which is inconsistent with EU law. This power allows the courts to refuse to give effect to the will of Parliament, thus establishing the supremacy of EU law over domestic law.