3.On 17 December 2015 the European Union Referendum Act 2015 received Royal Assent. The Act made provision for the holding of a referendum in the UK and Gibraltar on whether the UK should remain a member of the European Union (“the EU”). The referendum was held on 23 June 2016 and resulted in a 52% vote to leave the EU.
4.The European Union (Notification of Withdrawal) Act 2017 received Royal Assent on 16 March 2017. Section 1 of that Act gave the Prime Minister of the UK the power to notify the European Council of the UK’s intention to withdraw from the EU under Article 50(2) of the Treaty on European Union (“the TEU”). This notification was given on 29 March 2017. At the same time, the UK notified its withdrawal from the European Atomic Energy Community (‘Euratom’), in accordance with the same Article 50(2) as applied by Article 106a of the Treaty Establishing the European Atomic Energy Community (“the Euratom Treaty”).
5.On 23 January 2017 the Welsh Government and Plaid Cymru jointly published a White Paper entitled Securing Wales' Future. The paper sets out the main issues identified by the Welsh Government and Plaid Cymru as vital for Wales as the UK moves to leave the EU. It includes the broad aims of the Welsh Government for the negotiations between the UK Government and the EU with emphasis on preserving and promoting prosperity while recognising the majority wish to leave the EU. The paper also contained ideas about the future constitutional and governance structures of the UK following withdrawal.
6.On 15 June 2017 the Welsh Government published a further policy paper entitled Brexit and Devolution which developed the ideas on constitutional and governance structures in Securing Wales’ Future.
7.On 13 July 2017, the European Union (Withdrawal) Bill (“the EU Withdrawal Bill”)(1) was introduced in the House of Commons. It contains provision for the repeal of the European Communities Act 1972 (“the ECA 1972”) and other provision in connection with the withdrawal of the UK from the EU. The ECA 1972 was enacted in anticipation of the UK joining the European Economic Community on 1 January 1973 (the European Economic Community has since evolved to become the EU). A condition of membership of the EU is for EU law to be given effect in domestic law. The treaties ratified by the UK Government to achieve membership of the European Economic Community did not alter the law of the UK. It was necessary for each treaty to be incorporated into domestic law by legislation. The ECA 1972 provided that law arising from the various treaties of what were then the European Communities became part of domestic law and it continues to provide that EU law is part of domestic law.
8.The incorporation of EU law into domestic law is achieved by the ECA 1972 in two ways:
Section 2(1) of the ECA 1972 provides that rights, powers, liabilities, obligations, restrictions, remedies and procedures provided in some types of EU law are directly applicable in the UK legal system. This means that they are directly applicable without the need for further domestic legislation. For example, a provision of an EU Treaty, such as the Treaty on the Functioning of the European Union (“the TFEU”), which creates a directly applicable right, is enforceable in the UK courts without further action domestically.
Section 2(2) of the ECA 1972 authorises the implementation of EU obligations of the UK by subordinate legislation. For example, obligations in an EU Directive may be implemented by way of subordinate legislation. This does not prevent an EU obligation being implemented domestically by primary legislation (for example Part 5 of the Environment (Wales) Act 2016) or using powers contained in other primary legislation (for example section 2 of the Pollution Prevention and Control Act 1999).
9.The repeal of the ECA 1972 will mean that these provisions will cease to have effect.
10.In Miller(2), the Supreme Court stated that although the ECA 1972 gives effect to EU law it is not itself the originating source of that law. The Act was described in arguments on behalf of the Secretary of State as a ‘conduit pipe’ by which EU law is introduced into the law of the UK. The Supreme Court agreed with this analogy. Removing the ‘conduit pipe’ would therefore stop the flow of EU law into domestic law. Any EU law which applies in domestic law by virtue of section 2(1) of the ECA 1972 would therefore cease to have effect unless provision is made to preserve the effect of that law.
11.On repeal of section 2(2) of the ECA 1972, all subordinate legislation made under that power will lapse automatically unless provision is made to preserve it. The EU Withdrawal Bill makes provision in clause 2 for such legislation to be saved on repeal of the 1972 Act.
12.On 12 September 2017, the Welsh Government laid a Legislative Consent Memorandum (“the LCM”) before the Assembly in respect of the EU Withdrawal Bill as introduced on 13 July 2017. The full list of clauses which are within or modify the legislative competence of the Assembly are set out in a table at annex A to the LCM. The LCM stated that the Welsh Government would not be able to recommend to the Assembly that it gives consent to the Bill as drafted on introduction.
13.On 19 September 2017, the First Minister of Wales and the First Minister of Scotland sent a joint letter to the Prime Minister of the UK with a set of proposed amendments to the EU Withdrawal Bill. The letter explained that if the amendments were made to the Bill, both the Welsh Government and the Scottish Government could consider recommending to the Assembly and the Scottish Parliament that consent be given to the EU Withdrawal Bill. The amendments were subsequently tabled in Parliament but the amendments were not agreed by the House of Commons Committee.
14.Amendments were tabled by the UK Government to clause 11 of the EU Withdrawal Bill at House of Lords Committee stage in response to concerns raised regarding the impact of that Bill on devolution. These were debated, along with other amendments relating to devolution, on 21 March 2018. All amendments were withdrawn at House of Lords Committee stage with further consideration of these clauses to take place at House of Lords Report stage.
15.References below to the provisions of the EU Withdrawal Bill are references to the Bill as introduced in the House of Lords on 18 January 2018(3), which is the version of the Bill as it stood when the Bill of this Act was passed by the National Assembly for Wales on 21 March 2018.
R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, at paragraph 65.