European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 (the ‘Great Repeal Act’) was the primary legislation that provided the legal framework for the United Kingdom’s withdrawal from the European Union. The Act repealed the European Communities Act 1972 (the legal basis for UK membership) on ’exit day’ and converted existing EU law into UK domestic law as ‘retained EU law’. The Act also gave government ministers extensive delegated powers (Henry VIII powers) to correct deficiencies in retained EU law arising from withdrawal. The Act established the principle of supremacy of EU law as it existed immediately before exit, and provided for the status of retained EU case law in UK courts. The Act has been amended by the European Union (Withdrawal Agreement) Act 2020.

Legal area: Constitutional law establishes the framework of government and the fundamental principles by which a state is governed, including the relationship between different branches of government and the rights of citizens.

Citation: European Union (Withdrawal) Act 2018 (2018 c 16)

Full text: https://www.legislation.gov.uk/ukpga/2018/16

Key Provisions

• Section 1: Repeal of the European Communities Act 1972 on exit day
• Section 2: Saving of converted EU-derived domestic legislation
• Section 3: Incorporation of direct EU legislation (regulations, decisions)
• Section 4: Saving of rights under EU Treaties (direct effect)
• Section 5: Supremacy of EU law preserved as at exit day
• Section 6: Status of retained EU case law (Supreme Court not bound by CJEU)
• Sections 7-9: Henry VIII powers to amend deficiencies
• Section 13: Parliamentary approval of the withdrawal agreement

Significance

The European Union (Withdrawal) Act 2018 was one of the most significant and controversial constitutional statutes in modern UK history. The Henry VIII powers in sections 7-9 were criticised for allowing the executive to amend primary legislation without full parliamentary scrutiny. The Act was challenged by Joanna Cherry QC and others, and a cross-party group of MPs on various grounds. The Act’s provisions on retained EU case law created a new category of domestic law with a unique hierarchy of judicial precedent. The Act was amended by the European Union (Withdrawal Agreement) Act 2020 to implement the Withdrawal Agreement and to provide for the implementation period.