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Essay: The European Withdrawal Act 2018

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  • Published: 27 September 2021*
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The European Withdrawal Act 2018 is of great importance to the legal systems of the UK. It does two main things. The Act repeals the European Communities Act 1972 – which is the legislation that currently gives legal authority for EU law to have effect as national law in the UK – and it preserves existing EU law by converting it into domestic law. The existing body of EU law will be frozen as of exit day and adopted as UK law. The intended effect of this is for continuity. This is a huge task, described as “a legal undertaking of a type and scale that is unique and unprecedented” by the Constitution Committee. Being a member of the European Union has had a huge impact upon UK law, altering the development of fundamental constitutional doctrines, principles and practices. It comes as no surprise that withdrawal from the EU will disturb the current constitution. Throughout this essay I will examine the impact of the Withdrawal Act on the UK constitution through it’s impact upon parliamentary sovereignty, the relationship between parliament and government, the constitutional authority of the courts and the territorial constitution.
The Act ensures that EU law continues to apply in the UK by introducing the concept of ‘retained EU law’. The aim of this is to ensure legal certainty and avoid the chaos of losing EU derived law. Section 2 of the Withdrawal Act authorises EU-derived domestic legislation to continue to have effect in domestic law. Despite having effect in the UK on a free standing legislative basis, EU-derived domestic legislation is included under the heading of ‘retained EU law’. This could be viewed as an attempt to recategorise domestic law, thus impacting on our understanding of the constitution. The Lords’ Constitution Committee questioned the need for this and recommended that EU-derived domestic legislation should be removed from the category of ‘retained EU law’. The government disagreed. As a result, EU-derived domestic legislation is vulnerable to the ministerial powers contained in the act. In addition to EU-derived domestic legislation, the Act converts directly EU legislation into retained direct EU legislation. This will ensure that all EU regulations, EU decisions and EU tertiary legislation forms part of domestic law after exit. The Act extends further by preserving what is stated in Section 4 of the act. Constitutional implications of sections 3 and 4 can be seen when considering the legal status of such retained EU law. It was agreed that EU-derived domestic legislation would maintain its original status. In relation to the retained EU law set out in sections 3 and 4 of the act, the government took the view that it should not be given the status of primary or secondary legislation. Instead, retained EU legislation will be defined as either retained minor or principal EU legislation. This is unsettling to the constitutional categorisation of legislation in the UK as it effectively creates a new category of legislation in our constitutional order. Minor legislation can be modified routinely by secondary legislation but principal legislation can only be modified by primary legislation or an existing Henry VIII power. The Constitutional Committee recommended that all retained law should be categorised as domestic primary legislation to ensure the laws were not vulnerable to delegated powers contained in other legislation but the government did not take the recommendations on board. This emphasises imbalance of power brought by the Act and could be a cause for concern for government accountability.
The European Union (Withdrawal) Act 2018 vests significant delegated powers in the executive. The Act displays how flexible the UK constitution is and raises questions about the separation of powers at Westminster. Due to the magnitude of laws that are based on the UK being in the EU, the act gives UK ministers powers to amend domestic law in order to ensure that the laws make sense after exit day. It enables ministers to make provisions that they deem appropriate in order to avoid failure in retained EU law with few exceptions. The use of the word ‘appropriate’ is broad and subjective, pointing towards some of the constitutional implications arising in the section. It emphasises just how powerful ministers are as decisions can be made on the basis of their own subjective opinion. The Constitution Committee informed Parliament of the constitutional risks of granting such powers to the executive and warned that it could fundamentally alter the constitutional balance of powers between the government and parliament, describing it as an “unacceptable transfer of legal competence”. The Act does however, make provisions for a sifting process in which committees of each house can recommend the use of the affirmative procedure. The constitutional shift of power is emphasised through the fact that recommendations are not binding upon ministers and they can continue with the negative procedure if they so wish – simply by making a statement explaining their reasons for disagreeing with the sifting committee. The Act introduces the ‘made affirmative’ procedure for urgent deficiencies, which could be viewed as impacting on the UK constitution as the procedure allows an instrument to be made and come into force without any parliamentary debate despite it usually being subject to affirmative procedure. This is on the condition that the minister is “of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved.” It must be added that there is a slight check on this power. After 28 days, the instrument will cease to have effect unless it is approved by both houses . However, the impact an instrument can make in 28 days in the current political climate is considerable so the significance of this new power cannot be underestimated.
The principle of supremacy of EU law has never sat comfortably with the doctrine of parliamentary sovereignty in the UK. “Taking back control” was a fundamental concern during the referendum campaign but the act provides little alleviation from EU supremacy. The doctrine of supremacy of EU law will have no application to laws passed on, or after exit day, however the principal of the supremacy of EU law continues to apply in some cases when altering law passed before exit day. The Act is not clear as to which forms of retained EU law this will apply to, however it can be presumed that it should apply in corresponding with the forms of EU law, such as directly effective regulations, that themselves had supremacy. It could be said that overtime the importance of EU law supremacy will fade as it will be replaced with purely domestic law which the doctrine of supremacy does not apply to. However, when considering the sheer volume of retained EU law, it becomes clear that a significant component of domestic law will be made up of retained EU law for some time, thus bringing with it the supremacy of EU law. This will alter the constitutional standing of domestic law as it becomes susceptible to the supremacy of EU law, despite Britain’s exit from the European Union.
When examining the constitutional implications for the courts, a big factor is that of case law from the Court of Justice of the European Union (CJEU). Before leaving the EU, all courts were bound by CJEU case law and will continue to be bound by previous decisions while having “regard to anything done on or after exit day.”. However, the key constitutional change is that retained case law will no longer be binding on the Supreme Court and the High Court of Justiciary. They will be able to depart from it by applying the same test as they would when departing form their own case law. This frees the courts of the constraints of EU case law and will result in decisions that are not influence by the CJEU – a clear constitutional change. In more general terms, the vagueness and ambiguities relating to retained EU law may prove challenging to the courts as they settle disputes that will no doubt arise around the meaning and impact of the new category of legislation. Moreover, the Withdrawal Act removes any action for state liability – the principle established in Francovich (Cases C-6 & 9-90) – meaning citizens will no longer have the ability to claim compensation as a result of UK failure to comply with EU law. This changes the constitution in a way that impacts mainly on ordinary citizens.There are some exceptions to this however. This does not apply to a situation where proceedings have begun before 29 March 2019 at 11pm or proceedings begin within the two year period beginning with exit day as long as it relates to something that took place before exit day.
Arguably the most significant constitutional implication of the Withdrawal act, due to its possible long-term impact, is the impact on the UK’s territorial constitution. The Withdrawal Bill was subject to mass criticism due to it giving all retained EU law to the UK government and giving the devolved governments no authority to alter retained EU law. The original intention of this was to ensure that UK wide arrangements, that are currently granted by EU law, would not be compromised by leaving the EU. Due to allegations of a ‘power-grab’, the Bill was changed. The Act sets out that powers will return to the devolved administrations except in areas where UK ministers use statutory interments to prevent it. To ensure this ministerial power does not go unchecked, devolved legislatures are to be consulted before such regulations are made. However, the devolved governments cannot block UK ministers from limiting devolved powers, signalling a change to our constitutional understanding of the division of powers in the UK. The Scottish Parliament refused to grant its consent to the Withdrawal Act under the Sewel Convention, which states that the UK parliament “will not normally legislate with regard to devolved matters without consent” of the devolved parliaments. A convention is not legally enforceable so the UK Parliament enacted the Withdrawal Act in spite of the refusal. This could potentially have long term implications for the constitution on an immense obdurate scale as it could potentially strengthen the agenda and increase support for a second Scottish Independence Referendum as a result of the UK government ignoring the Scottish Parliament at such a crucial point in time.
There is no doubt that the European Union (Withdrawal) Act will change the UK constitution and reshape the understanding of the current constitutional order. The balance of powers is set to become heavily weighted to the UK parliament – more specifically the government itself. The basic categorisation of laws will change with the addition of EU retained law. The doctrine of parliamentary sovereignty may become more obvious in lawmaking as the doctrine of EU supremacy begins to fade from the constitution (which will take some time). The courts will feel an impact when they try to make sense of the often ambiguous and vague nature of the Act and the relationship between the UK Parliament and the devolved government – especially that of the Scottish Parliament – could suffer from bad relations which could result in a complete reshaping of the territorial constitution.

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