European Union (Withdrawal) Act 2018 published
The long-awaited publication date of the European Union (Withdrawal) Act 2018 has arrived, commencing the biggest change to UK legislation in decades.
There are four main functions to the Act, these being:
- Revocation of the European Communities Act 1972
- Conversion of EU law as it stands at the moment of exit into domestic law, and preservation of laws made in the UK to implement EU obligations
- Creation of powers to make secondary legislation, including temporary powers to amend the laws that would otherwise no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement (subject to parliamentary approval)
- Ensuring that decision making powers in areas currently governed by EU law will pass to the devolved institutions.
Background to the Act
On 1 January 1973, the UK joined the European Economic Community, which has since evolved into today’s European Union (EU). A condition of membership is that community (EU) law be given effect in domestic law. This was done through the European Communities Act 1972, which gave effect to EU law and supremacy over UK domestic law.
On 23 January 2013, then-prime minister David Cameron announced his intention to negotiate a new settlement on the terms of the UK’s EU membership, followed by a pledge to hold an in-out referendum on membership. The European Union Referendum Act 2015 was published on 17 December 2015, and a referendum held on 23 June 2016, resulting in a 52% vote to leave the EU.
The European Union (Notification of Withdrawal) Act 2017 notified the European Council of the UK’s intention to withdraw from the EU under Article 50 of the Treaty on European Union, which was given on 29 March 2017. A series of government white papers set out what the government was seeking to achieve in negotiating the exit from, and new partnership with, the EU, as well as how the domestic legal system will work once the UK leaves.
Status of retained EU law
For many, the important question is: what is the status of EU law? The Withdrawal Act simply states that existing domestic legislation which implements EU law obligations will continue to have effect after the UK leaves the EU.
In addition, direct EU legislation (EU regulations, decisions or tertiary legislation and annexes to the EEA Agreement) will continue to have effect in, and be converted into, domestic law on exit day.
There are concerns around the potential relaxation of environmental policies and principles post-Brexit. This has been addressed by the requirement for a draft bill, to be published by 26 December 2018, which will contain:
- A set of environmental principles
- A duty to publish a statement of policy in relation to the application and interpretation of those principles, which must be considered when making and developing policy
- Provisions for the establishment of a public authority that can take proportionate enforcement action (including legal proceedings if necessary) where they believe a minister of the crown is not complying with environmental law.
The environmental principles mentioned above must consist of things such as the precautionary principle, the polluter pays principle and sustainable development.
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