European Union: UK Brexit Legislation Receives Royal Assent

On June 26, 2018, the EU (Withdrawal) Bill received Royal Assent from Her Majesty the Queen and has become an Act of Parliament, the EU (Withdrawal) Act 2018. The Act, which was also formerly referred to as the Great Repeal Bill, is necessary to ensure that the U.K.'s laws continue to operate from the day the U.K. exits the EU.

From the date of the U.K.'s exit from the EU, the Act will (i) end the supremacy of EU law in U.K. law by repealing the European Communities Act 1972; (ii) convert EU law as it stands at the moment of exit into domestic law before the U.K. leaves the EU; and (iii) maintain the current scope of devolved decision making powers in areas currently governed by EU law.

The Act also creates powers to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the U.K. has left the EU and to implement the withdrawal agreement under Article 50 of the Treaty on European Union. The U.K. Government will now start work to begin laying before Parliament the expected 800 pieces of secondary legislation that will be required to prepare the U.K.'s statute book for EU withdrawal.

According to the Institute for Government, the two Houses of Parliament spent over 272 hours debating the original bill. The U.K. Government avoided defeats in the House of Commons by conceding on a number of issues. The Government rejected a number of high profile proposed amendments such as a proposed amendment to give Parliament power to approve a mandate for negotiations on the U.K.'s future relationship with the EU. The Government accepted one and made concessions on eight of the 15 amendments to the bill that were tabled by the House of Lords. The final Act differs from the originally tabled bill including in the following key areas:

  • Customs union—the Government must lay a statement before Parliament before October 2018, outlining steps taken to negotiate an agreement for the U.K. to participate in a customs arrangement with the EU.
  • Enhanced scrutiny—secondary legislation used to amend certain retained EU law will be subject to the affirmative scrutiny procedure, which means that they will need to be approved by both Houses of Parliament.
  • Challenges to retained EU law—legal challenges to domestic law if it fails to comply with the general principles of EU law will be allowed for three years after exit day, on the basis that the Act transfers general principles of EU law into domestic law as long as they are recognized by the European Court of Justice before exit day.
  • A "meaningful vote" for Parliament on the Withdrawal Agreement – Parliament will vote to approve the proposed Withdrawal Agreement and, if it does not approve it, a minister will make a statement setting out how the Government "proposes to proceed" within 28 days. The House of Commons would have a vote on a motion in neutral terms to consider that ministerial statement.
  • Northern Ireland—an amendment by way of a new clause referring to the North-South co-operation in the Good Friday Agreement and reducing the list of new border arrangements, subject to an agreement between the U.K. and the EU (rather than the U.K. and Ireland).
  • ECJ judgments—a set of amendments give greater guidance to U.K. courts as to when they should refer to ECJ judgments after exit day. The original wording provided that a U.K. court should refer to ECJ judgments "if it considers it appropriate." This has been amended to say that courts should refer to ECJ judgments when "relevant."
  • Status of retained EU law—a new clause has been added clarifying the status of retained EU law after exit day and how it should be amended after exit day.
  • Scope of delegated powers—the Government supported an amendment tabled by the House of Lords to remove the ability of ministers to amend the Act itself using secondary legislation.
  • Removal of clause 6—it became clear to the Government as the bill progressed through parliament that it would be unnecessary to retain clause 6, which gave ministers the power to use secondary legislation to amend U.K. law so that the U.K. would continue to comply with international obligations after exit from the EU.
  • Devolution—amendments give U.K. ministers power to place temporary restrictions on the devolved administrations' ability to legislate in certain devolved policy areas returning from the EU, while U.K.-wide frameworks are legislated.

The European Union (Withdrawal) Act 2018 (2018 c.16) is available at: http://www.legislation.gov.uk/ukpga/2018/16/contents/enacted/data.htm, the explanatory notes to the Act are available at: http://www.legislation.gov.uk/ukpga/2018/16/pdfs/ukpgaen_20180016_en.pdf, our Client Note on the European Union (Withdrawal) Bill is available at: https://www.shearman.com/perspectives/2017/07/brexit-the-great-repeal-bill.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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