The scenes in Parliament this week have been extraordinary. As we write, it looks as if the Bill which seeks to prevent a no-deal Brexit without Parliament's approval will become law. But the uncertainty over Brexit looks set to continue for some time to come.
This post takes a slightly longer view. It examines what would happen to the EU law which currently applies in the UK if we do eventually end up with a no-deal Brexit.
The European Union (Withdrawal) Act 2018 (the "Withdrawal Act") is the UK's safety net in a no-deal scenario. It ensures that vast areas of EU law won't simply disappear overnight when we leave. It does this by turning that legislation into national law. This includes law across a huge range of fields, from environmental protection, aviation safety and health to food standards and data protection.
In this article, we explain how the Withdrawal Act is structured and how it operates. We go into slightly more technical detail than our previous posts, by focusing on the mechanism that converts EU law into national law, how that mechanism is to be interpreted and the exceptions to it.
Section 1 repeals the European Communities Act 1972 ("ECA") – the legislation which enables the UK's legal system to interact with the EU's legal system.
However, despite the repeal of the ECA anyone familiar with its provisions will be struck by the fact that the "savings mechanism" – sections 2-4 and 6 – mirrors the wording of the ECA. The similarities between the ECA and the "savings mechanism" are deliberate. The purpose of the Withdrawal Act is to provide continuity – to make sure that, insofar as it is possible, at the moment the UK leaves the EU, domestic law will remain the same as it was immediately before our exit. So the use of the same terms in the "savings mechanism" is a clear signpost that the law should be interpreted in the same way as it was prior to EU exit.
The savings mechanism
The savings mechanism operates across sections 2-4 and 6 of the Withdrawal Act. EU legislation, case law and principles saved by these provisions are defined in the Withdrawal Act collectively as "retained EU law".
Section 2 saves domestic law which the UK has implemented to comply with its obligations as a member of the EU – both secondary legislation made under section 2(2) of the ECA, as well as other legislation which has either been passed (primary) or made (secondary) to implement EU law in domestic law. Some of that legislation would fall away on exit day if it were not saved – for example, legislation made under section 2(2) the ECA, which would have been repealed along with its parent Act. Other legislation would have survived any implied repeal – for example, Acts of Parliament, but needs to come within the definition of retained EU law to remove and/or replace references in the legislation which will become redundant or unworkable once the UK is no longer in the EU (for example references to EU institutions or cooperation between Member States).
Section 3 saves EU law which did not require implementation into UK domestic law because it flows directly through the "conduit pipe" (to quote the Supreme Court in Miller) of section 2(1) of the ECA into the UK legal system. That includes both EU regulations and decisions. Section 3 only saves legislation where it applies in the UK's legal system at the point immediately before exit. So, for example, an EU regulation which is in force but doesn't yet apply will not be saved. Similarly, where an EU regulation contains certain articles which apply prior to exit and others which do not yet apply, only those provisions which already apply will become retained EU law and the others will not be saved.
Section 4 is the "sweeper" which saves any remaining rights, obligations, liabilities etc. which flowed into UK law through section 2(1) of the ECA. This includes rights in the EU Treaties which apply directly in UK law, such as Article 157 of the Treaty on the Functioning of the European Union which sets out the right to equal pay.
Section 4 also contains certain exclusions. It is worth noting that EU directives are not saved as retained EU law, because these have been transposed into UK law through domestic legislation – which is preserved under section 2. Section 4 expressly precludes cases from being brought post exit on the basis of the direct effect of EU directives. The policy here is that these sorts of "EU law" challenges won't be appropriate when the UK has left the EU.
Section 6 sets out how retained EU law (the legislation, rights etc. saved in sections 2-4) should be interpreted post exit. The watchword here is continuity – retained EU law should be interpreted in accordance with the meaning it was given prior to exit, applying the general principles and case law that also form part of retained EU law (i.e. case law of the Court of Justice of the European Union ("CJEU")) and domestic courts' judgments, as well as the retained general (constitutional) principles of the EU, including fundamental rights and proportionality.
Judgments of the CJEU which are handed down post exit will not bind the UK courts. Instead, such judgments can be taken into account by UK domestic courts where they are relevant to any matter before the court.
Only the UK Supreme Court and the High Court of Justiciary in Scotland can depart from retained EU case law, applying the same tests as they would use when departing from their own case law.
Section 5 and Schedule 1
Section 5 and Schedule 1 set out exceptions to the savings mechanism outlined above.
Section 5 provides that the principle of the supremacy of EU law (over conflicting domestic law) does not apply post exit. However, the principle of the supremacy of EU law applies to the relationship between pre-exit EU (as retained through the savings mechanism) and pre-exit domestic law. This is essential so that the relationship between pre-exit domestic law and EU law doesn't shift post exit. The hierarchy between the two remains, in order to meet the overarching goal of continuity.
Section 5 also provides that the EU's Charter of Fundamental rights is not retained in UK domestic law post exit. The reason for this is that the UK Government's position has always been that the Charter simply codifies pre-existing rights in EU law, so to do away with it makes no difference to the rights which individuals enjoy. Pre-exit case law based on the Charter of Fundamental rights should be interpreted as though it referred to the underlying right rather than to the Charter of Fundamental rights.
Schedule 1 contains further exceptions. It sets out that retained EU law cannot be challenged post exit day on the basis that an EU instrument was invalid. The policy behind this is that it will not be appropriate to continue with these sorts of challenges as they would require a UK court to hear a case based, for example, on the argument that the wrong procedure under the EU Treaties was followed when the instrument was made. This sort of argument isn't relevant if the UK is no longer subject to the EU Treaties.
Post exit. individuals will not be able to bring cases based on the failure to comply with the general principles of EU law, and neither can a court disapply an enactment on the basis of incompatibility with the general principles of EU law (although the general principles are still available in the context of the interpretation of EU law (see section 6(3)). The policy here is that a challenge based on the general principles could result in disapplication of primary legislation which would be inconsistent with Parliamentary sovereignty.
The final exception to note is that post exit, an individual's ability to bring a claim for Francovich damages (i.e. a claim against a Member State for a breach of EU law in certain circumstances) is also removed. Again, Francovich damages are very much an EU law remedy which don't sit well in a purely domestic (non-EU) context.
The safety net provided by the Withdrawal Act is an essential insurance policy for a no-deal Brexit. Without it, the uncertainty of a no-deal Brexit would be amplified.
If implemented, the safety net will give a measure of continuity. The standards set out in the EU legislation which applied to the UK prior to exit will be saved. On the other hand the point of the EU law which the Withdrawal Act saves is harmonisation of standards which in turn facilitates trade between the EU Member States. Although the standards will be saved the aim of facilitating trade through reciprocal rights and obligations will be gone.