European Union (Withdrawal) Bill [HL]

Explanatory Notes

Repeal of the European Communities Act 1972

16 The UK is a 'dualist' state, meaning that a treaty ratified by the Government does not alter the laws of the state unless and until it is incorporated into domestic law by legislation. This means that the UK Parliament has to pass legislation before the rights and obligations in the treaty can have effect domestically.1

17 The ECA effectively confirmed the UK’s membership of the European Economic Community (as then was) and gave EU law supremacy over UK domestic law. Without it, EU law could not become part of national law. The legal background section of these notes provides a detailed explanation of how EU law currently operates in the UK legal system.

18 The two main provisions in the ECA are:

Section 2(1), which ensures that rights and obligations in some types of EU law, such as the EU treaties and regulations, are directly applicable in the UK legal system. This means that they apply directly without the need for the UK Parliament to pass specific domestic implementing legislation.

By contrast, section 2(2) provides a delegated power to allow for the implementation of EU obligations, for example obligations in directives, by way of secondary legislation (through statutory instrument).2

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(The relationship between EU law and UK law is subject to the principle of supremacy - see paragraph 56)

19 The European Union (Withdrawal) Bill repeals the ECA on the day the UK leaves the EU (defined in clause 14 as 11.00 p.m. 29 March 2019 unless otherwise agreed between the UK and the European Council). This will have the effect of removing the mechanism for the automatic flow of EU law into UK law (through section 2(1) of the ECA) and removing the power to implement EU obligations (under section 2(2) ECA). This reflects the fact that the UK will no longer be a member of the EU and will therefore cease to have obligations under EU law.

1 In some cases, it may be that domestic legislation is already sufficient to ensure compliance with the international agreement or that compliance can be delivered without legislation.

2 EU obligations can also be implemented domestically by primary legislation or using powers in other Acts.


Prepared 18th January 2018