After much political debate but relatively little substantive change, the EU Withdrawal Act 2018, has become law.

What's the issue?

The EU Withdrawal Bill (originally referred to as the 'Great Repeal Bill') was published in July 2017. It is a vital piece of legislation which deals with the UK's legal framework on and after Brexit.

The legislation has had a protracted progress to enactment with numerous amendments tabled and the majority subsequently defeated.

What's the development?

The European Union Withdrawal Act 2018, (Act) received Royal Assent on 26 June 2018. Some provisions have come into force, others will be brought in by statutory instrument. The Act:

  • Repeals the European Communities Act 1972 from date of exit.
  • Preserves the rights in EU treaties that can be relied on directly in court by individuals.
  • Converts existing EU law (as it applies to the UK) into national law.
  • Preserves all laws made in the UK to implement EU obligations.
  • Gives pre-Brexit CJEU law the same binding precedent status as Supreme Court decisions.
  • Creates powers to make secondary legislation in order to enable corrections to be made to laws which would no longer work appropriately.
  • Sets out the order of precedence after exit, from which point:
    • new UK legislation will trump EU-derived law.
    • EU-derived law which applies at the time of exit will trump non-EU derived law in force at the time of exit.
  • Covers repatriation of powers from the EU to the devolved nations. And
  • Gives Parliament a vote on the final Brexit deal before it is voted on by the European Parliament.

What does this mean for you?

Amidst the many uncertainties around Brexit, one of the most pressing is how the UK's legal framework will operate after exit. The Withdrawal Act does what it can to address this but uncertainties and ambiguities remain, particularly around any transition period, and in terms of which laws will be amended and how.

The challenge for legislators is to make changes to EU-derived law to make it work in a post-Brexit regulatory and judicial environment, to do this on time, but without knowing exactly what that environment will be.

For those trying to stay on top of the legislative impact of Brexit, the Act certainly provides some clarity of approach. On a micro-level, however, all amended legislation relevant to your business will require careful scrutiny.

The provision for a 'meaningful vote' by Parliament on the exit deal and the future relationship with the EU, was fiercely fought for, but with the Tory rebels backing down and agreeing to a compromise amendment, it is difficult to understand how meaningful Parliament's role will be. To date, there has been political reluctance on all sides of the Houses, to do anything which might be interpreted as going against 'the will of the people'. However, the Brexit rollercoaster is currently hurtling at top speed with the resignations of David Davis and Boris Johnson still to play out in full politically. Parliament may yet have a crucial role to play.

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What are the main differences between the Bill and the Act?

The most significant changes to the original Bill are:

  • The definition of the "exit date" as 11pm on 29 March 2019. This can be amended by the government by regulation. It is unclear what happens if there is a transition period but, as currently envisaged, a transition (or implementation) period would require the UK to continue to apply EU law until 31 December 2020. Further legislation (which is provided for in the Act) will be needed to give effect to this.
  • The Withdrawal Agreement with the EU has to be approved by an Act of Parliament. Both the Withdrawal Agreement and a framework for the future relationship, have to be approved by Parliament. The government must ensure the vote on the Withdrawal Agreement takes place before the vote in the European Parliament.If the House of Commons rejects the Withdrawal Agreement and the future relationship framework, the government must make a statement about how it intends to proceed within 21 days. The plan will then be debated in Parliament on a motion in neutral terms (although the motion can, potentially, be amended).If there is no agreement in principle with the EU on the withdrawal arrangements and the future relationship by 21 January 2019, the government must make a statement to Parliament within five days, setting out how it intends to proceed. Again, this will be debated on a motion in neutral terms.
  • Certain types of action against pre-exit day breaches of general EU law principles may be brought after exit day.
  • Returning EU powers that would be within the legislative competence of the devolved authorities will be exercised by them unless the government makes exceptions by regulation.
  • A narrowed scope of what may be amended using the controversial 'Henry VIII' powers which require a lesser level of Parliamentary scrutiny.