29 June 2018

The EU Withdrawal Bill received Royal Assent on 26 June 2018 and became the European Union (Withdrawal) Act 2018 (the “Act”).

The Act provides that the UK will leave the European Union at 11pm on 29 March 2019 (“Exit Day”). As noted previously, the Act will repeal the European Communities Act 1972 and will form the legal foundation of a considerable amount of domestic law after Brexit.

Sections 2 to 7 of the Act deal with the retention of existing EU law with the aim of achieving legal continuity after Exit Day. EU-derived domestic legislation will continue to have effect in domestic law after Exit Day, as will direct EU legislation. The principle of the supremacy of EU law will no longer apply to any enactment or rule of law passed or made on or after Exit Day, save for the exceptions noted at section 5.

In addition, courts and tribunals will not be bound by any principles laid down, or any decisions made, on or after Exit Day by the Court of Justice of the European Union (“CJEU”) nor can they refer any matters to the CJEU. However, this is also subject to a number of exceptions.

The so-called “Henry VIII powers” have been limited, although section 8 does provide ministers with the power to “prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law arising from the withdrawal of the UK from the EU”.

The Scottish Parliament refused to grant its consent to the European Union (Withdrawal) Bill on the basis of the contentious provisions regarding devolution. Sections 10 to 12 of the Act deal with devolution and section 12 prevents the devolved administrations from amending retained EU law in specific areas to be identified in regulations to be made by the UK government. A new section 30A will be inserted to the Scotland Act 1998 to give effect to this.

Contact: Jeremy Glen, Partner jsg@bto.co.uk T: 0141 221 8012.