EU legislation to be directly applicable during the implementation period

Posted in UK and EU legal framework

In a White Paper published today, the government has stated that EU legislation will continue to be directly applicable within the UK during the implementation period. The UK will also continue to be bound by decisions of the Court of Justice of the European Union (CJEU) until the end of the implementation period.

The European Union (Withdrawal) Act 2018 (the “Withdrawal Act”) provided for the repeal of the European Communities Act 1972 on Brexit in March 2019. It incorporated all European legislation directly applicable in the UK on that date into domestic law and granted wide powers to amend that body of law using secondary legislation.

The new proposed approach is to undo the repeal of the key parts of the European Communities Act 1972 during the implementation period. EU Regulations would continue be directly applicable within the UK. The UK would be subject to the jurisdiction of the CJEU – continuing to refer cases to it and being bound by its decisions. The mechanism to transfer EU law into domestic law envisaged in the Withdrawal Act would only come into force at the end of the implementation period.

There are two main differences between the Withdrawal Act and the new proposal. The first is political: the rules that will apply during the implementation period are EU rules, not UK rules. This may be seen as a real difference, even though the UK rules that were originally envisaged would simply have been copies of the EU rules. The second difference is practical: new EU Regulations and decisions of the CJEU will apply within the UK until the end of the implementation period. The White Paper notes that, due to the lengthy legislative process, any new Regulations during that time will have involved input from the UK. But, of course, if the implementation period is extended that may no longer be true.

The new approach at first appears simpler: the existing legal regime will largely continue to apply. But it raises some new problems. For instance, major surgery is required on the body of EU law to allow it to operate smoothly once the UK is no longer a Member State. References to Member States and non-Member States might no longer work; references to EU bodies might have to be replaced with references to the equivalent UK bodies; interaction with external treaties might no longer work if the UK is not a member of the EU. All these issues were to be dealt with during the implementation period by modifying the laws transferred into UK legislation using powers in the Withdrawal Act. It is unclear how this process will work during the implementation period if the relevant rules are still EU laws. No doubt these issues will be fully ventilated during the parliamentary debates accompanying any forthcoming amendments to the Withdrawal Act.

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