Part I: The Uncertain Application of the EU Withdrawal Act 2018. From the Great Repeal to the Contingency Plan?

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Marta Simoncini

University College London

To repeal or not to repeal EU law, this is the question that the UK Government and Parliament will have to respond to in preparation for Brexit. This Post aims to analyse how the UK Government has responded so far to this big question. The Post will be published in two Parts. The first Part will analyse the answer provided by the EU (Withdrawal) Act 2018, whereas the second Part will focus on the recent proposals addressed in the White Paper aimed at legislating for the Withdrawal Agreement between the United Kingdom and the European Union in the EU Withdrawal Agreement Bill.

1.     The Great Repeal Operation

On 26 June 2018, the EU (Withdrawal) Act 2018 received Royal Assent and introduced a sophisticated regime to repeal the European Communities Act (ECA) 1972 while saving the bunch of EU law in force by the time of exit day with the aim of retaining the current provisions and effects of EU law as domestic law, in the UK rulebook.

This critical legal operation dealt with a big political challenge. On the one hand, this operation needed to cut the umbilical cord that ECA 1972 created to make EU law flow into the UK legal order. This required Section 1 of the EU (Withdrawal) Act 2018 to expressly repeal the ECA 1972 itself on exit day. On the other hand, the operation needed to face the practical impossibility to repeal EU law all at once without adverse effects on UK economy.

The EU Withdrawal Act 2018 engaged in the massive and unprecedented effort of identifying the EU law that should be saved and adjusting it to a different legal framework for its enforcement. By preparing for leaving the EU and launching a new regulatory framework after exit day, the EU Withdrawal Act 2018 proposes a sort of hard approach to Brexit. In a great repeal operation, it carves out the EU law that shall be retained and leaves aside the EU law that is not considered useful after Brexit.

Three big categories of EU law are saved. The first one, under Section 2 of the Act, covers EU-derived domestic legislation, which will continue to have effect in domestic law on and after the exit day. This category particularly saves secondary legislation, which cannot survive on its own after the repeal of the Act from which its power is derived. All the enactments under Section 2 (2) of the ECA 1972 are preserved and they continue ‘to be domestic law on and after exit day (…) as an enactment of the same kind’.

The second category, under Section 4 of the Act, concerns EU directly effective rights under Section 2 (1) of the ECA 1972, which will continue to be recognised and available in domestic law on and after the exit day. The third category, under Section 3 of the Act, refers to the vast bunch of direct EU legislation, which is retained ‘so far as operative immediately before exit day’. Direct legislation includes EU regulations and decisions which are considered as ‘direct principal EU legislation’ (according to Sections 3 (2), 7 (2) and (6) and 20 of the Act), and EU delegated and implementing acts which are labelled as EU tertiary legislation and are residually considered ‘direct minor EU legislation’ (under Section 5 (5) of the Act and Section 2 of Schedule 1 of the Act).

However, Section 5 (4) of the Act expressly excluded from the domestication process the continued enforcement of the Charter of Fundamental Rights. Section 5 (5) of the Act and Section 2 of the Schedule 1 only save those fundamental rights and general principles that exist irrespective of the Charter and consolidated in the case law of the Court of Justice before exit day. Yet, Schedule 1 of the Act expressly rules out State liability for breach of EU law under the Francovich case law. More consistently, the principle of supremacy of EU law is retained only insofar as it is relevant for ‘the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’.

2.     Cooling the Repeal Down

Some mitigation measures however apply. The EU (Withdrawal) Act 2018 provides, as a safeguard clause, the possibility to replicate at any point ‘any EU law made on or after exit day’, as well as ‘to participate in, or have formal relationship with, the agencies of the EU after exit day’. This means that the UK would not necessarily be prevented from incorporating future EU law in domestic legislation.

Participation in EU agencies is particularly critical in some sectors, above all aviation. When the UK leaves the EU, as far as the UK aviation industry is concerned, the European Aviation Safety Agency (EASA) will be no longer entitled to issue type-certifications of aircraft and components, nor to approve organisations involved in the design, manufacture and maintenance of aeronautical products, nor to issue certification of personnel and organisations involved in the operation of aircraft. In addition, this would happen in the wider context where the proposal of Regulation extending EASA’s tasks and responsibilities in aviation safety is on the table of the European Parliament and the Council.

Smooth Brexit in the aviation sector means that an equivalent, worldwide recognised certification system shall be put in place before exit day. It seems practically far-fetched that the UK can repatriate these certification functions and develop a credible domestic standard of safety or replicate the EASA standards in the short term, as all the organisation and expertise have been for years delegated to EASA.

The regulatory governance would be at most preserved if membership or another model of participation in the Agency would continue to ensure the EASA-standard safety for the UK aviation industry. If not, accreditation to the American standards or some contractual arrangements to provisionally delegate these functions to the EASA or the American Federal Aviation Administration (FAA) seem to be a more effective option in the immediate post-Brexit scenario (see S Whalley, 2017). Similar safety concerns arise in the certification of chemical products by the European Chemical Agency (ECHA) and of medicines by the European Medicines Agency (EMA).

In addition, the EU (Withdrawal) Act 2018 recognises the importance of the negotiations for the Withdrawal Agreement between the UK and the EU, which shall provide the substantive framework ensuring people, businesses and organisations the yearned smooth and orderly exit. It recognises the need to leave unprejudiced the solutions reached in that Agreement, while pointing to infuse some key principles in the regulatory framework that shall emerge from those negotiations. For instance, Section 18 holds that customs arrangements shall be sought by Government in such negotiations, and Section 13 requires Parliamentary approval of the outcome of negotiations with the EU. However, this is not the end of the story about the repeal of EU law in the UK.

Marta Simoncini is a Teaching Fellow in EU Law at UCL and an Assistant Professor of Administrative Law at LUISS ‘Guido Carli’. This Post is part of her research project ‘Leading the Brexit Transition. The Role of Sunset Clauses in Delegated Legislation’, Accademia Nazionale dei Lincei – British Academy Scholarship (2018).

Suggested citation: M Simoncini, 'Part I: The Uncertain Application of the EU Withdrawal Act 2018. From the Great Repeal to the Contingency Plan?' IACL-AIDC Blog (6 August 2018)