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European Union (Withdrawal) Act 2018

Contents

Part 4: Specific transitional, transitory and saving provision

Retention of existing EU law

  1. Paragraph 38 provides that rights etc which arise under EU directives and are recognised by courts or tribunals in the UK in cases which have begun before exit but are decided on or after exit day are preserved by section 4 and are not excluded by subsection (2) of that section.
  2. Paragraph 39 makes further provision about the exceptions to the saving and incorporation of EU law set out in section 5 and Schedule 1. The exceptions apply in relation to anything occurring before exit day as well as anything occurring after exit day. However, this is subject to the following specific transitional and saving provision and any specific saving and transitional provision made in regulations under section 23(5).
  3. First, the exceptions for the Charter of Fundamental Rights, and for claims in respect of validity, general principles and Francovich do not apply in relation to cases which have already been decided before exit day (see sub-paragraph (2)).
  4. Second, the exceptions to preserved and converted law set out in section 5(4) (for the Charter of Fundamental Rights) and paragraphs 3 and 4 of Schedule 1 (for general principles and Francovich claims) will not apply in respect of proceedings which have begun before exit but are not decided until after exit (see sub-paragraph (3)). So, for example, a Francovich claim commenced before exit can be decided by a court after exit.
  5. Third, the exceptions in paragraphs 1 to 4 of Schedule 1 (for validity, general principles and Francovich claims) will not apply in relation to any criminal conduct which occurred prior to exit day (see sub-paragraph (4)).
  6. Fourth, sub-paragraph (5) provides that the restriction on challenges based on incompatibility with any of the general principles of EU law (set out in paragraph 3 of Schedule 1) does not apply in respect of certain proceedings begun within three years of exit day. In order to fall within the scope of this sub-paragraph, any challenge must relate to something that occurred before exit day and may be made against either administrative action or domestic legislation other than Acts of Parliament or rules of law. Courts, tribunals and other public authorities will be able to disapply legislation or quash conduct in the event of a successful challenge. The rights of challenge cannot be used in relation to: anything which gives effect to or enforces an Act of Parliament or rule of law; or anything which could not have been different as a result of any Act of Parliament or rule of law.
  7. Sub-paragraph (6) provides that a court, tribunal or other public authority will, on or after exit day, still be able to disapply any enactment or rule of law, or quash any conduct on the basis of incompatibility with the general principles where it is a necessary consequence of a decision made by a court or tribunal before exit day, or decisions in proceedings commenced during the three year period after exit day provided for under paragraph 39(5). This saves the effect of case law decided before exit day or during the transitional period in which the courts have disapplied a provision of pre-exit legislation on the grounds that it is incompatible with one of the general principles of EU law.
  8. Finally, sub-paragraph (7) delays the prohibition in the Bill on seeking Francovich damages in domestic law (set out paragraph 4 of Schedule 1) for two years after exit day. This ensures that the Bill will not prevent individuals from continuing to seek such damages in domestic law where a breach of EU law occurred before exit day.

    9. Main powers in connection with withdrawal

  9. Paragraph 40 clarifies that although certain powers in the Act expire, the regulations made under them do not expire.

    10. Devolution

  10. Sub-paragraph (1) of paragraph 41 provides that the amendments made to the devolution legislation by section 12 and Part 1 of Schedule 3 do not affect the validity of devolved primary legislation receiving Royal Assent before exit day, subordinate legislation subject to confirmation or approval that has been made and confirmed or approved before exit day, and any other subordinate legislation made before exit day. Paragraph 42 makes equivalent provision in respect of administrative acts done before exit day.
  11. Sub-paragraphs (3) to (5) of paragraph 41 disapply the current EU law limits on devolved competence so that primary legislation can be made validly before exit day in relation to an area that is not specified in any regulations made under the powers inserted by section 12(2), 12(4) or 12(6) or Schedule 3 Part 1 as subject to a limit on competence. Sub-paragraphs (6) to (8) make similar provision in relation to the making, confirming or approving of secondary legislation before exit day. Legislation covered by these sub-paragraphs (other than powers to make, confirm or approve subordinate legislation) must come into force on or after exit day in order to benefit from the disapplication of the EU law limit on competence.
  12. Sub-paragraph (10) disapplies – for the purposes of the exercise of the powers in Schedules 2 and 4 – the provisions in the devolution Acts that would otherwise prevent the devolved administrations from making secondary legislation that would be incompatible with EU law.
  13. Paragraph 42 is self-explanatory.
  14. Paragraph 43 ensures that any consent decisions made by the devolved legislatures before the Bill receives Royal Assent, or in relation to any draft instrument put to the devolved legislatures before that time, would count as a consent decision for the purposes of making regulations under the new powers in section 12 and Schedule 3 Part 1. It would also allow the statutory 40 day period in those provisions to run from a date before the Bill receives Royal Assent.

    15. Other provision

  15. Paragraph 44 is a transitional provision related to the definition of ‘relevant criminal offence’ and reflects a pending amendment to the Regulation of Investigatory Powers Act 2011.
  16. Paragraph 45 makes transitional provision for the amendment to section 56 Finance Act 1973. It deals with payment after exit for services etc received before exit. It also saves the effect of section 56 where regulations made under it are preserved and the service is still being provided post exit.

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