European Union (Withdrawal) Act 2018
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The European Union (Withdrawal) Act 2018 (c. 16) is an Act of the Parliament of the United Kingdom that provides for repealing the European Communities Act 1972, and for Parliamentary approval of the withdrawal agreement being negotiated between HM Government and the European Union.
This will enable the "cutting off the source of EU law in the UK... and remove the competence of EU institutions to legislate for the UK." As such, It is the most significant constitutional legislation that has been introduced by the Government since the European Communities Act itself in 1972.
To provide legal continuity, it will enable the transposition of directly-applicable already-existing EU law into UK law, and so "create a new category of domestic law for the United Kingdom: retained EU law." It will also give the government some restricted power to adapt and remove laws that are no longer relevant.
The bill's passage through both Houses of Parliament was completed on 20 June 2018 and it became law by Royal Assent on 26 June. It makes future ratification of the withdrawal agreement as a treaty between the UK and EU depend upon the prior enactment of another act of Parliament for approving the final terms of withdrawal when the current Brexit negotiations are completed; and fixes 21 January 2019, at the latest, when the government must decide on how to proceed if the negotiations have not reached agreement in principle on both the withdrawal arrangements and the framework for the future relationship between the UK and EU, for Parliamentary debate.
- 1 The Act
- 2 EU response
- 3 Legislative history
- 3.1 Henry VIII clauses
- 3.2 House of Commons First and Second Readings
- 3.3 House of Commons Committee Stage
- 3.4 House of Commons Report Stage and Third Reading
- 3.5 House of Lords First and Second Readings and Committee Stage
- 3.6 House of Lords Report Stage
- 3.7 House of Lords Third Reading
- 3.8 Consideration of Amendments
- 3.9 Royal Assent and Commencement
- 4 Connected legislation: world and cross-border trade
- 5 See also
- 6 References
- 7 External links
For repealing ECA 1972 and ratifying withdrawal agreement
The Act is made in connection with the withdrawal of the United Kingdom from the European Union on 29 March 2019, the second anniversary of notice of withdrawal under Article 50 (2) of the Treaty on European Union. The Act provides for ratifying and implementing the agreement setting out the withdrawal arrangements. The mandatory period for negotiating the agreement is stated in the EU negotiating directives as ending "at the latest on 30 March 2019 at 00:00 (Brussels time)," —i.e. Central European Time— "unless the European Council, in agreement with the United Kingdom, unanimously decides to extend this period in accordance with Article 50(3) of the Treaty on European Union".
The Act legislates for the following:
- repeal of the European Communities Act 1972.
- fixing “exit day”, naming the hour for this as 11.00 p.m. on 29 March 2019.
- formal incorporation and adaptation ("copying") of up to 20,000 pieces of EU law onto the UK statute book by:
- conversion of directly-applicable EU law (EU regulations) into UK law.
- preservation of all laws that have been made in the UK to implement EU obligations.
- continuing to make available in UK law the rights in EU treaties, that are relied on directly in court by an individual.
- ending the supremacy of EU law in the United Kingdom.:ch.2
- creating powers to make commencement orders and other secondary legislation:ch.3 under statutory instrument procedures.
- Parliamentary approval of the outcome of the government’s negotiations with the EU under Article 50(2) of the Treaty on European Union.
Parliamentary approval: section 13
The Act's section 13 contains a set of mandatory procedures for Parliament's approval to the various possible outcomes of the government's negotiations with the EU. One outcome is that there will be an agreement between the United Kingdom and the EU under Article 50 of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU. In the Act the agreement is called the withdrawal agreement. The Act provides (section 13) that before the withdrawal agreement can be ratified, as a treaty between the United Kingdom and the European Union, an act of Parliament must have been passed which provides for its implementation. The Act allows (section 9) regulations to be made and in force on or before exit day for the purpose of implementing the withdrawal agreement, but only if by then an act of Parliament has been enacted "approving the final terms of withdrawal of the United Kingdom from the EU."
An analysis of the process set out in the Act published by the Institute for Government discusses the procedure for approving treaties that is set out in the Constitutional Reform and Governance Act 2010 (CRAG) which may apply to the withdrawal agreement and the framework agreement for future relations, depending on what they contain. The procedure could prevent ratification, but in exceptional cases a government may ratify a treaty without consulting Parliament.
Alternatively (section 13 (10)), if by Monday 21 January 2019 – less than eleven weeks before the mandatory negotiating period ends on Friday 29 March – there is no agreement in principle in the negotiations on the substance of the withdrawal arrangements and the framework for the future relationship between the EU and the United Kingdom, the government must publish a statement setting out how the government proposes to proceed, and must arrange for debate about that in Parliament within days.
The approval provisions use certain words in special ways:
- "a motion in neutral terms" is used three times in section 13 and is not defined in the Act, but a document dated 21 June 2018 setting out the government's undertsanding stated "Under the Standing Orders of the House of Commons it will be for the Speaker to determine whether a motion when it is introduced by the Government under the European Union (Withdrawal) Bill is or is not in fact cast in neutral terms and hence whether the motion is or is not amendable. The Government recognises that it is open for Ministers and members of the House of Commons to table motions on and debate matters of concern and that, as is the convention, parliamentary time will be provided for this."
- "a statement that political agreement has been reached" is used three times in section 13, and defined (section 13 (16)) as a Minister's written statement that, in the Minister’s opinion, "an ageement in principle has been reached in negotiations under Article 50(2) of the Treaty on European Union on the substance of (i) the arrangements for the United Kingdom’s withdrawal from the EU, and (ii) the framework for the future relationship between the EU and the United Kingdom after withdrawal".
Coming into force: section 25
The sections of the Act that came into force immediately when the Act passed into law on 26 June 2018, as listed in section 25 (1), include:
- 8 Dealing with deficiencies arising from withdrawal
- 9 Implementing the withdrawal agreement
- 10 Continuation of North-South co-operation and the prevention of new border arrangements
- 11 Powers involving devolved authorities corresponding to sections 8 and 9
- 16 Maintenance of environmental principles etc
- 17 Family unity for those seeking asylum or other protection in Europe
- 18 Customs arrangement as part of the framework for the future relationship
- 20 Interpretation
- 21 Index of defined expressions
- 22 Regulations
- 23 Consequential and transitional provision, except subsection (5)
- 24 Extent.
- 25 Commencement and short title.
Subsections (2) and (3) relate to the devolved administrations of Northern Ireland, Scotland and Wales. Subsection (4) provides for bringing into force by regulation the remaining provisions of the Act, including:
- 1 Repeal of the European Communities Act 1972
- 2 Saving for EU-derived domestic legislation
- 3 Incorporation of direct EU legislation
- 4 Saving for rights etc. under section 2(1) of the ECA
- 5 Exceptions to savings and incorporation
- 6 Interpretation of retained EU law
- 7 Status of retained EU law
- 13 Parliamentary approval of the outcome of negotiations with the EU
- 14 Financial provision
- 15 Publication and rules of evidence
- 19 Future interaction with the law and agencies of the EU.
No regulation for bringing any of those provisions into force was made before the end of June 2018.
The Democratic Unionist Party, whose support the government needs to have a majority in key Commons votes, said on 2 July 2018 it would not support any deal which did not give the UK full control over its borders.
After a meeting to discuss the latest development of the negotiations, when the European Union's chief negotiator Michel Barnier repeatedly told the Prime Minister the EU would not agree to discuss trade until an agreement was found on the terms of withdrawal, the prime minister informed the House of Commons on 2 July 2018 that she warned EU leaders that she did not think Parliament will approve the withdrawal agreement in the autumn "unless we have clarity about our future relationship alongside it." This was followed by a decision at a Cabinet meeting at Chequers on 6 July that continuing preparations for potential outcomes included the 'no deal' possibility.
David Davis, who as Secretary of State for Exiting the European Union had introduced the Act as a bill in Parliament, and who had attended the Cabinet meeting at Chequers on 6 July, resigned on 8 July. The next day, the prime minister appointed Dominic Raab as Brexit Secretary. Later in the day, the resignation of the Foreign Secretary, Boris Johnson, who had also attended the Chequers Cabinet meeting, was made public. Within hours, the prime minister appointed Jeremy Hunt as the next Foreign Secretary.
The government's policy on the future relationship between the United Kingdom and the European Union that the Cabinet had discussed at Chequers was published as a White Paper on 12 July 2018 for debate in the House of Commons the following week.
While the President of the United States was on a visit to the United Kingdom on 13 July 2018, his comment, that the UK would probably not get a trade deal with the US if the prime miinister's plan went ahead, was widely published in the media.
Government and other amendments to the Taxation (Cross-border Trade) Bill were set down for debate in the House of Commons at report stage to be held on 16 July. Government and other amendments to the Trade Bill were set down for debate in the House of Commons at report stage to be held on 17 July.
Impact on devolution
The government published in March 2018 a provisional analysis about the devolved administrations receiving new powers as the UK leaves the EU.
In devolved administrations, the powers currently exercised by the EU in relation to common policy frameworks would return to the UK, allowing the rules to be set in the UK by Westminster representatives. Ministers of devolved administrations would be given the power to amend devolved legislation to correct law that would not operate appropriately following Brexit.:ch.4 However, the bill also prevents devolved administrations from making changes that are "inconsistent" with those made by the UK government.:sch.2, pt.3(2) This significantly limits the power of the devolved governments by making it impossible for them to, for example, choose to retain a piece of EU law that has been modified by the UK government.
The Scottish Parliament passed an EU Continuity Bill (formally the "UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018") on 21 March 2018, to prepare Scots law for Brexit, but it has been referred for scrutiny to the Supreme Court under section 33 of the Scotland Act 1998, to determine whether the Parliament had legislative competence to pass such a bill, and thus Royal Assent is still pending, as of June 2018.[update] The Supreme Court hearing is due to start on 24 July 2018.
As the Northern Ireland Assembly has been suspended and the province has been without devolved government since 9 January 2017 — before the passage of the European Union (Notification of Withdrawal) Act 2017 — it has not been possible for the provincial assembly to consider any equivalent continuity powers. Without an Assembly or Executive, the province is governed by the Secretary of State for Northern Ireland and their junior ministers; these would be the same ministers responsible for making or amending continuity orders under the Withdrawal Act.
EU case law
At present, case law emanating from the Court of Justice of the European Union (CJEU, formerly and still commonly known as the ECJ) is binding on UK courts. The Act will have ECJ case law retained as part of the law, but it will no longer be binding on the courts and tribunals of the United Kingdom. The legislation permits courts to depart from ECJ caselaw after applying the same test as they would apply in deciding whether to depart from their own case law.
Human rights laws
The Act makes explicit in section 5 that the Charter of Fundamental Rights of the European Union will cease to be a part of UK law after Brexit.
Repeal of other Acts include:
- European Communities (Greek Accession) Act 1979
- European Communities (Spanish and Portuguese Accession) Act 1985
- European Union (Accessions) Act 1994
- European Union (Accessions) Act 2003
- European Union (Accessions) Act 2006
- European Union (Croatian Accession and Irish Protocol) Act 2013
- European Parliamentary Elections Act 2002
- European Parliament (Representation) Act 2003
- European Union (Amendment) Act 2008
- European Union Act 2011
- European Union (Approval of Treaty Amendment Decision) Act 2012
- European Union (Approvals) Act 2013
- European Union (Approvals) Act 2014
- European Union (Approvals) Act 2015
- European Union (Approvals) Act 2017
- European Union (Finance) Act 2015
- European Union Referendum Act 2015
- Sections 82 and 88(5)(c) of the Serious Crime Act 2015
Amendments to other Acts include:
- Finance Act 1973
- Interpretation Act 1978
- European Economic Area Act 1993
- Criminal Procedure (Scotland) Act 1995
- Human Rights Act 1998
- Scotland Act 1998
- Northern Ireland Act 1998
- Government of Wales Act 2006
- Interpretation and Legislative Reform (Scotland) Act 2010
- Small Business, Enterprise and Employment Act 2015
After the Act became law on 26 June 2018 the European Council decided on 29 June to renew its call on Member States and Union institutions to step up their work on preparedness at all levels and for all outcomes.
In October 2016 the Prime Minister, Theresa May, promised a "Great Repeal Bill", which would repeal the European Communities Act 1972 and restate in UK law all enactments previously in force under EU law. It would smooth the transition by ensuring that all laws remain in force until specifically repealed.
Henry VIII clauses
In March 2017, a report by Thomson Reuters identified 52,741 pieces of legislation that have been passed since 1990. Transferring European legislation into British law is the quickest way to ensure continuity. Because these may refer to EU institutions that the UK will no longer belong to, or use phrasing assuming that the UK is an EU member state, they cannot simply be directly converted into law. Redrafting all of the tens of thousands of laws affected and voting on them through Parliament would be an impossibly time-consuming process, so the bill included provisions, informally known as Henry VIII clauses, which would allow ministers to make secondary legislation to amend or remove these laws (both primary and secondary legislation) to resolve "deficiencies" by making statutory instruments.
In the bill, the powers were divided between two clauses. Clause 7 made provision for ministers to correct "deficiencies" in law (including references to EU institutions that the UK is no longer a member of, EU treaties that are no longer relevant, and redundancies), expiring two years after the UK leaves the EU. These proposed powers could not be used to make secondary legislation for
- Imposing or increasing taxation.
- Making retrospective provision.
- Creating a criminal offence with a maximum sentence greater than imprisonment for two years.
- Amending, repealing or revoking the Human Rights Act 1998 or any subordinate legislation made under it.
- Amending or repealing the Northern Ireland Act 1998 (with some limited exceptions).:§7
Clause 9 of the bill offered ministers unusually broad powers to make changes to legislation. Although some safeguards were included to limit the situations in which law can be modified, for instance with the inclusion of sunset clauses, the provisions granting these powers were criticised for being too wide-ranging.
House of Commons First and Second Readings
On 13 July 2017, David Davis, the Secretary of State for Exiting the European Union, introduced the bill in the House of Commons. As a government bill, this first reading was pro forma, with the first debate taking place on the second reading.
The second reading and debate on the bill began on 7 September 2017. The debate and second reading resumed on 11 September. Shortly after midnight on 12 September, the second reading passed by a margin of 326 to 290, a majority of 36 votes, after an amendment proposed by the Labour Party was rejected by a margin of 318 to 296. A motion to put the Bill under eight days of Committee scrutiny passed 318 to 301.
House of Commons Committee Stage
The Committee stage was originally scheduled to take place after MPs returned to Parliament following the conclusion, in October, of their respective party conferences. However, House of Commons leader Andrea Leadsom announced on 26 October that the committee stage was to begin on 14 November. Committee stage began as scheduled on 14 November as a Committee of the Whole House, and completed on 20 December 2017.
MPs tabled more than 470 amendments to the bill, and one of these provided Theresa May's government with its first defeat on government business, as MPs voted by 309 to 305 to give Parliament a legal guarantee of a vote on the final Brexit deal struck with Brussels. The government had originally suggested that as the bill will be a major focus of the parliamentary debate on Brexit as a whole, it would provide an alternative to a vote on the deal agreed in the Brexit negotiations. However, on 13 November 2017 the government announced that it would introduce a separate Withdrawal Agreement and Implementation Bill to deal separately with examining an agreement from the negotiations between the UK and EU, if any is reached, which would provide Parliament with a vote, but this did not prevent the amendment to the bill being passed.
The repeal was planned to be enacted during the Brexit negotiations, but to come into force on 'exit day'. As originally tabled, the bill did not give a date for 'exit day', but said that " 'exit day' means such day as a Minister of the Crown may by regulations appoint". If no time is specified, it was to be "the beginning of that day". However, the government tabled an amendment in Committee Stage so the bill then said " 'exit day' means 29 March 2019 at 11.00 p.m". To avoid a second possible defeat, the government accepted a further amendment that "A Minister of the Crown may by regulations amend the definition of 'exit day' ", allowing for flexibility in the event of a transitional deal, or extra time being needed in the negotiations.
- An amendment to exclude the section of the bill which states that the Charter of Fundamental Rights of the European Union will not be part of domestic law after exit day, was defeated by 311 votes to 301. On 5 December the Government had published an analysis setting out how each article of the charter will be reflected in UK law after Brexit.
- An amendment to allow the UK to remain in the EU Customs Union was defeated by 320 votes to 114.
- An amendment to hold a referendum on whether to: (1) accept the final exit deal agreed with the EU; or (2) remain in the EU, was defeated by 319 votes to 23.
House of Commons Report Stage and Third Reading
House of Lords First and Second Readings and Committee Stage
The bill had its First Reading in the Lords on 18 January 2018, and Second Reading on 30 and 31 January 2018, and committed to a Committee of the Whole House. This lasted for eleven days between 21 February and 28 March.
House of Lords Report Stage
- Amendment 1: A proposal requiring ministers to report on the Government's efforts to negotiate a continued customs union between the EU and the UK was passed by 348 to 225 – a majority of 123.
- Amendment 11: A proposal that certain areas of retained EU Law cannot be amended or repealed after Exit by Ministers, but only through primary legislation (i.e. an Act of Parliament), was passed by 314 to 217 – a majority of 97. These areas of retained EU Law are: (a) employment entitlements, rights and protection; (b) equality entitlements, rights and protection; (c) health and safety entitlements, rights and protection; (d) consumer standards; and (e) environmental standards and protection. Even technical changes to the retained EU Law in these areas can only be made with approval of both Houses of Parliament, and following 'an enhanced scrutiny procedure'.
- Amendment 15: One of the few pieces of EU Law the bill proposed to repeal, rather than transpose into UK Law, was the Charter of Fundamental Rights of the European Union, but an amendment to keep the Charter part of UK Law after Exit was passed by 316 to 245, majority 71.
- Amendment 18: A proposal which allows individuals to retain the right to challenge the validity of EU law post-Brexit was passed by 285 to 235 – a majority of 50.
- Amendment 19: A proposal which limits ministerial powers to alter EU law when it is incorporated into UK law post-Brexit was passed by 280 to 223 – a majority of 57.
- Amendment 31: A proposal to amend a clause that originally gave ministers power to make 'appropriate' changes to legislation, to instead give them power to make 'necessary' changes, was passed by 349 votes to 221 – a majority of 128, 25 April 2018.
- Amendment 49: A proposal that means parliament must approve the withdrawal agreement and transitional measures in an act of parliament, before the European parliament has debated and voted on this, and also gives the Commons the power to decide the next steps for the government if the deal is rejected (dubbed the 'meaningful vote') was passed by 335 to 244 – a majority of 91.
- Amendment 51: A proposed change giving parliament a say on future negotiations on the UK's future relationship with the EU was passed by 270 to 233 – a majority of 37.
- Amendment 59: A proposed change requiring the government to reunite unaccompanied child refugees with relatives in the UK was passed by 205 to 181 – a majority of 24.
- Amendment 70: A proposal to create a parliamentary committee to sift certain regulations introduced under the legislation to recommend whether they require further scrutiny of Brexit statutory instruments was passed by 225 to 194 – a majority of 31.
- Amendment 88: The Lords voted in favour of inserting a new clause regarding the continuation of North-South co-operation and the prevention of new border arrangements between Northern Ireland and the Republic of Ireland, 309 votes to 242 – a majority of 67.
- Amendment 93: A proposal to allow the Government to replicate any EU law in domestic law and to continue to participate in EU agencies (such as European Atomic Energy Community (Euratom)) after Brexit was passed by 298 to 227 – a majority of 71.
- Amendment 95: A proposal to remove the exit day of 29th March 2019 from the face of the Bill was passed by 311 to 233 – a majority of 78.
- Amendment 110A: A proposal to mandate the Government to negotiate continued membership of the European Economic Area was passed by 245 to 218 – a majority of 27.
On 30 April, a proposal to advance a second EU Referendum (amendment 50) was rejected by the Lords 260 votes to 202 – a majority of 58.
House of Lords Third Reading
During the Third Reading on 16 May 2018, the Government suffered its 15th defeat in the Lords which, including the Commons Committee defeat, meant 16 defeats overall. The bill then passed the Third Reading.
Consideration of Amendments
The Commons debated the amendments proposed by the Lords on 12 and 13 June. A majority voted to reject 14 of the 15 Lords amendments and accepted only one, which pertained to preservation of relations with the EU. The government also agreed to accept an amendment encouraging the negotiation of a customs arrangement with the EU and further compromised with amendments concerning the issues of Northern Ireland, scrutiny, the environment and unaccompanied child migrants. A government-backed amendment allowing legal challenges on the basis of EU law for the three-year period following Brexit also passed. It was also agreed that any withdrawal agreement with the EU would not be implemented without Parliament approval and if there was no such approval, a minister will make a statement setting out how the Government “proposes to proceed” within 28 days, as contained in section 13 of the Act as passed.
On 18 June the House of Lords passed another "meaningful vote" amendment similar to the one rejected by the House of Commons which allows a parliament vote on Brexit in case no UK-EU Brexit deal was reached, this time reworded so it wouldn't involve only a "neutral motion." This amendment was later defeated by the Commons on 20 June in a 319-303 vote. The same day, the Lords agreed to accept the government's EU Withdrawal Bill, thus paving the way for it to become law upon royal assent.
Royal Assent and Commencement
The bill became law as an Act on 26 June 2018. Section 1 states that the European Communities Act 1972 is repealed on exit day, defined in another section as 29 March 2019 at 11.00 p.m. Section 25 subsection (1) sets out the provisions of the Act that commenced on 26 June 2018, subsections (2) and (3) set out the provisions of the Act that commenced on that day for certain purposes, and subsection (4) states that the remaining provisions will come into force on the day or days appointed by regulations.
Connected legislation: world and cross-border trade
Two bills connected with the Withdrawal Act that were both introduced in the House of Commons in November 2017 are the Trade Bill (Sponsor, Liam Fox, Department for International Trade) and the Taxation (Cross-border Trade) Bill (Sponsor, Chancellor of the Exchequer, HM Treasury). These allow for various outcomes including no negotiated settlement.
The Explanatory Notes relating to the Trade Bill outline measures for building the UK's future trade policy after withdrawal from the EU, stating that these include:
- "... a power to ensure that the UK can implement any procurement obligations arising from the UK becoming a member of the GPA in its own right. The Agreement on Government Procurement (GPA) is a plurilateral agreement within the WTO framework. It mutually opens government procurement markets and seeks to address trade barriers. The UK is currently a member by virtue of its EU membership and will have to re‐join as an independent member."
- "The implementation of agreements with partner countries corresponding to the EU’s Free Trade Agreements (FTAs) and other trade agreements in place before the UK’s exit from the EU. The Trade Bill includes a power for the Government to implement any changes to domestic law which will be necessary for the UK to meet obligations flowing from these agreements."
The Explanatory Notes relating to the Taxation (Cross-border Trade) Bill state:
- –"Whatever the outcome of negotiations with the European Union (EU), the UK will need to legislate for a new Customs regime to be in place by March 2019. The new regime must provide for the tariff-related aspects of the UK’s future trading framework. It will need to allow sufficient flexibility to give effect to a range of potential outcomes from negotiations with the UK’s European partners, including an implementation period, and implementation of a new Customs regime in the event there is no negotiated settlement."
- –"In relation to VAT and excise, it is necessary to amend existing legislation as a consequence of the UK’s withdrawal from the EU with or without an agreement in order to ensure that these regimes work appropriately on withdrawal."
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