European Union (Withdrawal) Act 2018

Approach of the European Union (Withdrawal) Act

10. The principal purpose of the Act is to provide a functioning statute book on the day the UK leaves the EU. As a general rule, the same rules and laws will apply on the day after exit as on the day before. It will then be for Parliament and, where appropriate, the devolved legislatures to make any future changes.
11. The Act performs four main functions. It:
    • repeals the ECA;
    • converts EU law as it stands at the moment of exit into domestic law before the UK leaves the EU and preserves laws made in the UK to implement EU obligations;
    • creates powers to make secondary legislation, including temporary powers to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left the EU and to implement a withdrawal agreement (subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal); and
    • removes the existing restrictions on devolved competence in relation to acting incompatibly with EU law so that decision making powers in areas currently governed by EU law will pass to the devolved institutions, except where specified in secondary legislation under this Act.
12. In determining this approach, the Government considered whether there were alternative viable legislative models available to deliver the changes required to ensure a functioning statute book on exit from the EU. These included using a single piece of legislation to repeal the ECA and setting out in schedules the necessary consequential changes required to ensure a functioning statute book. However, given that the two year time period to conclude negotiations provided for by Article 50 will be running in parallel with this legislation, there may not be time to make all the necessary legislative changes in a single piece of legislation (as in some cases the content of that legislation could not be known until after the negotiations had concluded).
13. For that reason, the approach of taking delegated powers to make the necessary changes by secondary legislation was agreed by the Government as being the only appropriate solution. This was acknowledged by the Lords Constitution Committee in its report into The ‘Great Repeal Bill’ and delegated powers: "The degree of uncertainty as to what exactly the process of converting EU law into UK law will involve-and, in particular, the need to take account of
    the UK’s ongoing Article 50 negotiations with the EU-will almost certainly
    necessitate granting the Government relatively wide delegated powers under the
    ‘Great Repeal Bill’, both to amend existing EU law in preparation for the day of
    Brexit and to legislate for new arrangements following Brexit where necessary."1
14. The Act does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are appropriate to ensure the law continues to function properly from exit day. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.
15. In addition to the power in section 9 of the Act, the Government has announced that a separate Bill, the Withdrawal Agreement and Implementation Bill, will be used to implement in domestic legislation the major elements of the withdrawal agreement between the UK and the EU that will need to be reflected in domestic legislation (see paragraph 30 of these notes for further detail).