European Union (Withdrawal) Act 2018: a profound change to the English legal system Charles Bankes Jo Weston January 2019
Introduction The transition period Overview of EU (Withdrawal) Act 2018 What happens to existing EU legislation on exit day Ministers’ powers to deal with “deficiencies” 1
What is the transition period? runs from 30 March 2019 to 31 December 2020 one extension possible by mutual agreement for up to 1 or 2 years Transition period decision to extend must be taken before 01 July 2020 UK will - cease to be EU Member State and withdraw from Euratom, but - continue to be treated as if EU Member State and EU law will On 29 March 2019 continue to apply during transition period, and - continue to participate in EU Customs Union and Single Market four freedoms (free movement of goods, persons, services and capital) for transition period “Snapshot” of delayed until end of transition period - relevant to understand EU retained EU law (Withdrawal) Act 2018 (see next slide) 2
What is EU (Withdrawal) Act 2018? Repeals the European Communities Converts directly Act 1972 (ECA) applicable EU law Gives powers to on exit day to ministers and domestic law and others to make preserves UK laws changes to made under the legislation ECA to implement EU obligations 25 Sections and 9 Schedules Gives Parliament Deals with the right to devolved approve the Brexit authorities (not deal (not covered covered in this in this talk) talk) 3
What happens to existing EU legislation on exit day? EU-derived domestic legislation Includes regulations, primary and In effect in domestic law Continues to have effect in immediately before exit day secondary legislation made under, or domestic law on and after exit (includes legislation passed for a purpose in, the ECA or relating day but not yet in force) otherwise to EU or EEA (Section 2) Direct EU legislation Operative immediately before Forms part of domestic law EU Regulations, EU Decisions and exit day Creates new form of domestic EU tertiary legislation (e.g (in force and applies) legislation implementing regulations) (Section 3) Treaty rights Immediately before exit day Rights, powers, liabilities, Continue to be recognised recognised and available in obligations, restrictions, remedies and available domestic law and procedures (Section 4) 4
What happens to existing EU legislation on exit day? all existing implementing legislation survives including SIs made under ECA (subject to deficiency provisions) EU-derived continues to be domestic law in same format (ie: primary / subordinate or domestic legislation another enactment) (section 2) how to identify all EU-derived domestic legislation? new form of domestic legislation sub-divided into two categories: Direct EU legislation retained direct “principal” EU legislation (amended by primary legislation) (section 3) retained direct “minor” EU legislation (amended by secondary legislation) catalogue of direct EU legislation to be published Legislation which has been: adopted but does not yet apply; or proposed while UK member of EU and finalised within two years of exit “In-flight” legislation if “no deal” – government can still implement (e.g. Financial Services (Implementation of Legislation) Bill) 5
What powers do ministers have to deal with “deficiencies”? to prevent, remedy or mitigate any failure of retained EU law to operate effectively, or Wide-ranging powers any other deficiency in retained EU law, arising from the UK’s exit from the EU (section 8) no new or increased taxes or fees no retrospective provision Some restrictions no creation of “relevant criminal offence” no amendment or repeal of Human Rights Act 1988 or subordinate legislation under it 2 years from exit day for the use of these powers but may be extended if Time limit there is a transition period 6
What does it mean in practice? Legislation Exit day Transition period EU Regulation already in force and applies Direct EU legislation Same as pre-exit day e.g.: [Market Abuse Regulation] retained EU law EU Directive implemented into UK law before EU–derived domestic legislation Same as pre-exit day exit day retained EU law e.g.: [Working Time Regulations 1998 implementing the EU Working Time Directive] EU Implementing regulation in force and Direct EU legislation Same as pre-exit day applies retained EU law EU Regulation in force but does not yet apply Not direct EU legislation not retained Same as pre-exit day – would e.g.: [Prospectus Regulation] EU law automatically apply Will not apply unless implemented in UK or “in flight” legislation EU Directive in force but does not yet apply Not implemented in UK so not EU– Same as pre-exit day – would need to e.g.: [Shareholders Rights Directive II] derived domestic legislation not be implemented domestically retained EU law. Will not apply unless implemented in UK or “in flight” legislation 7
Appendix •European Union (Withdrawal) Act 2018 •Act •Explanatory Notes •EU/UK Withdrawal Agreement •Withdrawal Agreement (25 November 2018) •Explainer Note •Future UK/EU Relationship •Political Declaration (25 November 2018) •Explainer note •UK Government slides on Withdrawal Agreement and Political Declaration •EU (Withdrawal Agreement) Bill •24 July 2018 White Paper • The Brexit Deal Explained 8
elexica.com/brexit elexica.com/en/blog/breaking-down-brexit elexica.com/en/resources/microsite/disputes-aviator simmons-simmons.com elexica.com LIVE_EMEA1: 41738120
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