Legalize / United Kingdom / Public General Act

European Union (Withdrawal) Act 2018

Type Public General Act

Publication 2018-06-26

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Repeal of the ECA

Repeal of the European Communities Act 1972

1

The European Communities Act 1972 is repealed on exit day.

Retention of saved EU law at end of implementation period

Saving for EU-derived domestic legislation

2

(1) EU-derived domestic legislation, as it has effect in domestic law immediately before IP completion day, continues to have effect in domestic law on and after IP completion day.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) and section 5A (savings and incorporation: supplementary).

Incorporation of direct EU legislation

3

(1) Direct EU legislation, so far as operative immediately before IP completion day, forms part of domestic law on and after IP completion day.

(2) In this Act “direct EU legislation” means—

(a) any EU regulation, EU decision or EU tertiary legislation, as it has effect in EU law immediately before IP completion day and so far as—

(ai) it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,

(bi) it neither has effect nor is to have effect by virtue of section 7A or 7B,

(i) it is not an exempt EU instrument (for which see section 20(1) and Schedule 6), and

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) its effect is not reproduced in an enactment to which section 2(1) applies,

(b) any Annex to the EEA agreement, as it has effect in EU law immediately before IP completion day and so far as—

(ai) it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,

(bi) it neither has effect nor is to have effect by virtue of section 7A or 7B,

(i) it refers to, or contains adaptations of, anything falling within paragraph (a), and

(ii) its effect is not reproduced in an enactment to which section 2(1) applies, or

(c) Protocol 1 to the EEA agreement (which contains horizontal adaptations that apply in relation to EU instruments referred to in the Annexes to that agreement), as it has effect in EU law immediately before IP completion day and so far as—

(i) it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement, and

(ii) it neither has effect nor is to have effect by virtue of section 7A or 7B.

(3) For the purposes of this Act, any direct EU legislation is operative immediately before IP completion day if—

(a) in the case of anything which comes into force at a particular time and is stated to apply from a later time, it is in force and applies immediately before IP completion day,

(b) in the case of a decision which specifies to whom it is addressed, it has been notified to that person before IP completion day, and

(4) This section—

(a) brings into domestic law any direct EU legislation only in the form of the English language version of that legislation, and

(b) does not apply to any such legislation for which there is no such version,

but paragraph (a) does not affect the use of the other language versions of that legislation for the purposes of interpreting it.

(5) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) and section 5A (savings and incorporation: supplementary).

Saving for rights etc. under section 2(1) of the ECA

4

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Exceptions to savings and incorporation

5

(A1) The principle of the supremacy of EU law is not part of domestic law.

This applies after the end of 2023, in relation to any enactment or rule of law (whenever passed or made).

(A2) Any provision of assimilated direct legislation—

(a) must, so far as possible, be read and given effect in a way which is compatible with all domestic enactments, and

(b) is subject to all domestic enactments, so far as it is incompatible with them.

(A3) Subsection (A2) is subject to—

(a) section 186 of the Data Protection Act 2018 (data subject’s rights and other prohibitions and restrictions) (and see also section 183B(3) of that Act);

(b) regulations under section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023 .

(A4) No general principle of EU law is part of domestic law after the end of 2023.

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The Charter of Fundamental Rights is not part of domestic law on or after IP completion day.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Schedule 1 (which makes further provision about exceptions to savings and incorporation) has effect.

(7) Subsections (A1) to (6) and Schedule 1 are subject to relevant separation agreement law (for which see section 7C).

(8) In this section “domestic enactment” means an enactment other than one consisting of assimilated direct legislation.

Interpretation of retained EU law

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(1) A court or tribunal—

(a) is not bound by any principles laid down, or any decisions made, on or after IP completion day by the European Court, and

(b) cannot refer any matter to the European Court on or after IP completion day.

(2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.

(3) Any question as to the validity, meaning or effect of any assimilated law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it—

(a) in accordance with any assimilated case law ..., and

(b) having regard (among other things) to the limits, immediately before IP completion day, of EU competences.

(4) But—

(a) the Supreme Court is not bound by any assimilated EU case law,

(b) the High Court of Justiciary is not bound by any assimilated EU case law when—

(i) sitting as a court of appeal otherwise than in relation to a compatibility issue (within the meaning given by section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995) or a devolution issue (within the meaning given by paragraph 1 of Schedule 6 to the Scotland Act 1998), or

(ii) sitting on a reference under section 123(1) of the Criminal Procedure (Scotland) Act 1995,

(ba) a relevant court or relevant tribunal is not bound by any assimilated EU case law so far as is provided for by regulations under subsection (5A), and

(5) In deciding whether to depart from any assimilated EU case law by virtue of subsection (4)(a) or (b), the Supreme Court or the High Court of Justiciary must apply the same test as it would apply in deciding whether to depart from its own case law.

(5A) A Minister of the Crown may by regulations provide for—

(a) a court or tribunal to be a relevant court or (as the case may be) a relevant tribunal for the purposes of this section,

(b) the extent to which, or circumstances in which, a relevant court or relevant tribunal is not to be bound by retained EU case law,

(c) the test which a relevant court or relevant tribunal must apply in deciding whether to depart from any retained EU case law, or

(d) considerations which are to be relevant to—

(i) the Supreme Court or the High Court of Justiciary in applying the test mentioned in subsection (5), or

(ii) a relevant court or relevant tribunal in applying any test provided for by virtue of paragraph (c) above.

(5B) Regulations under subsection (5A) may (among other things) provide for—

(a) the High Court of Justiciary to be a relevant court when sitting otherwise than as mentioned in subsection (4)(b)(i) and (ii),

(b) the extent to which, or circumstances in which, a relevant court or relevant tribunal not being bound by retained EU case law includes (or does not include) that court or tribunal not being bound by retained domestic case law which relates to retained EU case law,

(c) other matters arising in relation to retained domestic case law which relates to retained EU case law (including by making provision of a kind which could be made in relation to retained EU case law), or

(d) the test mentioned in paragraph (c) of subsection (5A) or the considerations mentioned in paragraph (d) of that subsection to be determined (whether with or without the consent of a Minister of the Crown) by a person mentioned in subsection (5C)(a) to (e) or by more than one of those persons acting jointly.

(5C) Before making regulations under subsection (5A), a Minister of the Crown must consult—

(a) the President of the Supreme Court,

(b) the Lord Chief Justice of England and Wales,

(d) the Lord Chief Justice of Northern Ireland,

(e) the Senior President of Tribunals, and

(f) such other persons as the Minister of the Crown considers appropriate.

(5D) No regulations may be made under subsection (5A) after IP completion day.

(6) Subsection (3) does not prevent the validity, meaning or effect of any assimilated law which has been modified on or after IP completion day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications.

(6A) Subsections (1) to (6) are subject to relevant separation agreement law (for which see section 7C).

(7) In this Act—

“assimilated case law” means—assimilated domestic case law, andassimilated EU case law;

“assimilated domestic case law” means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before IP completion day and so far as they—relate to anything to which section 2 or 3 applies, andare not excluded by section 5 or Schedule 1,(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

“assimilated EU case law” means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before IP completion day and so far as they—relate to anything to which section 2 or 3 applies, andare not excluded by section 5 or Schedule 1,(as those principles and decisions are modified by or under this Act or by other domestic law from time to time);

“assimilated law” means anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2 or 3 or subsection (3) or (6) above (as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time);

Status of retained EU law

7

(1) Anything which—

(a) was, immediately before exit day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and

(b) continues to be domestic law on and after exit day by virtue of section 1A(2) or 1B(2),

continues to be domestic law as an enactment of the same kind.

(1A) Anything which—

(a) was, immediately before IP completion day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and

(b) continues to be domestic law on and after IP completion day by virtue of section 2,

continues to be domestic law as an enactment of the same kind.

(4A) Assimilated direct legislation ... may only be modified by—

(a) primary legislation, or

(b) subordinate legislation so far as it is made under a power which permits such a modification by virtue of—

(i) paragraph 3, 8(3), 11A, 11B or 12(3) of Schedule 8,

(ii) any other provision made by or under this Act,

(iii) any provision made by or under an Act of Parliament passed before, and in the same Session as, this Act, or

(iv) any provision made on or after the passing of this Act by or under primary legislation.

(5) For other provisions about the status of assimilated law, see—

(a) section 5 (A1) to (A3) and (7) (status of assimilated law in relation to other enactments or rules of law),

(b) section 6 (status of assimilated case law ...),

(ba) section 7C (status of case law of European Court etc. in relation to assimilated law which is relevant separation agreement law),

(d) paragraph 16 of Schedule 8 (information about Scottish instruments which amend or revoke subordinate legislation under section 2(2) of the European Communities Act 1972),

(e) paragraphs 19 and 20 of that Schedule (status of certain assimilated direct legislation for the purposes of the Interpretation Act 1978), and

(f) paragraph 30 of that Schedule (status of assimilated direct legislation for the purposes of the Human Rights Act 1998).

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Main powers in connection with withdrawal

Dealing with deficiencies arising from withdrawal

8

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively, or

(b) any other deficiency in retained EU law,

arising from the withdrawal of the United Kingdom from the EU.

(2) Deficiencies in retained EU law are where the Minister considers that retained EU law—

(a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant,

(b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it,

(i) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State,

which no longer exist or are no longer appropriate,

(d) makes provision for, or in connection with, other arrangements which—

(i) involve the EU, an EU entity, a member State or a public authority in a member State, or

(ii) are otherwise dependent upon the United Kingdom's membership of the EU or Part 4 of the withdrawal agreement,

and which no longer exist or are no longer appropriate,

(e) makes provision for, or in connection with, any reciprocal or other arrangements not falling within paragraph (c) or (d) which no longer exist, or are no longer appropriate, as a result of the United Kingdom ceasing to be a party to any of the EU Treaties or as a result of either the end of the implementation period or any other effect of the withdrawal agreement,

(ea) is not clear in its effect as a result of the operation of any provision of sections 2 to 6 or Schedule 1,

(f) does not contain any functions or restrictions which—

(i) were in an EU directive and in force immediately before IP completion day (including any power to make EU tertiary legislation), and

(ii) it is appropriate to retain, or

(g) contains EU references which are no longer appropriate.

(3) There is also a deficiency in retained EU law where the Minister considers that there is—

(a) anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2), or

(b) a deficiency in retained EU law of a kind described, or provided for, in regulations made by a Minister of the Crown.

(4) But retained EU law is not deficient merely because it does not contain any modification of EU law which is adopted or notified, comes into force or only applies on or after IP completion day.

(5) Regulations under subsection (1) may make any provision that could be made by an Act of Parliament.

(6) Regulations under subsection (1) may (among other things) provide for functions of EU entities or public authorities in member States (including making an instrument of a legislative character or providing funding) to be—

(a) exercisable instead by a public authority (whether or not established for the purpose) in the United Kingdom, or

(b) replaced, abolished or otherwise modified.

(7) But regulations under subsection (1) may not—

(a) impose or increase taxation or fees,

(b) make retrospective provision,

(d) establish a public authority,

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or

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