Leaving the European Union

The Supreme Court agrees that the UK Parliament (not the UK Government) should decide to trigger Article 50 of the Treaty of the EU. Doing so would notify the EU of the UK’s intention to leave and start a two-year countdown to exit.

The ruling was significant for devolution for two reasons:

1. it unambiguously reaffirmed the principle of (UK) parliamentary sovereignty, dampening any notion of shared sovereignty with the devolved legislatures; and
2. it left no doubt that the Sewel Convention is a political, and not a legal, convention, which therefore cannot be enforced by the courts.

Since Brexit, there’s been a significant increase in UK laws going ahead without devolved consent. It’s unknown to what extent the Miller ruling contributed to this.

The EU (Notification of Withdrawal) Act 2017 received Royal Assent on 16 March 2017. The Act has two clauses authorising the Prime Minister to notify the EU of the UK’s intention to leave.

UK Prime Minister, Theresa May, notifies the European Council’s President, Donald Tusk, of the UK’s intention to leave the EU and Euratom. Invoking Article 50(2) of the Treaty on the EU starts a two-year countdown to the UK’s exit.

Common frameworks are agreements between the four governments of the UK on how to manage divergence between the four nations in areas previously governed or coordinated at EU level. Changes proposed to legislation by any of the four nations in one of 26 areas covered by a common framework should be discussed by the intergovernmental groups established by the relevant framework before a government introduces it to their legislature. This marks a significant change to law-making in the UK.

The Law Derived from the European Union (Wales) Act 2018 started as an Emergency Bill introduced on 7 March 2018 by the then Cabinet Secretary for Finance, and former First Minister, Mark Drakeford MS.

The Act would:

1. preserve EU law covering subjects devolved to Wales on the UK’s withdrawal from the EU;
2. ensure legislation covering these subjects worked effectively after the UK left the EU;
3. enable the Welsh Ministers to legislate to maintain regulatory alignment with the EU to facilitate continued access to the EU market for Welsh businesses;
4. create a default position in law whereby the consent of the Welsh Ministers was required before any changes were made by UK Ministers to devolved legislation within the scope of EU law.

The Act would later be repealed on 22 November 2018 (see this date below on the timeline for more information).

Similar legislation in Scotland went ahead and received Royal Assent on 29 January 2021. The UK Withdrawal from the EU (Continuity)(Scotland) Act 2021 remains in force today.

The EU (Withdrawal) Act 2018 (EUWA18) has three main functions. It:

1. repealed the European Communities Act 1972, through which EU law automatically applied in the UK;
2. converted EU law to UK law on the day of the UK’s exit (11pm, 31 January 2020) and created a new category of UK law, retained EU law; and
3. gave UK and Welsh Ministers temporary powers to deal with deficiencies so that the law functioned effectively.

EUWA18 amended the Government of Wales Act 2006 accordingly, including to remove the requirement for an Act of the Senedd to be compatible with EU law.

The Welsh Government originally recommended the Senedd withhold consent to the EU (Withdrawal) Bill. Following amendments and an intergovernmental agreement with the UK Government, the Welsh Government recommended the Senedd consent to the Bill.

Following an intergovernmental agreement between the UK and devolved governments on the EU (Withdrawal) Bill and the establishment of common frameworks, the Welsh Government agreed to repeal the Law Derived from the EU (Wales) Act 2018.

The Law Derived from the European Union (Wales) Act 2018 (Repeal) Regulations 2018 came into effect on 22 November 2018. The regulations repealed the Act in its entirety.

The Withdrawal Agreement is an international law treaty between the UK and EU. It deals only with the separation of the UK from the EU and Euratom.

International treaties are subject to a scrutiny process in the UK Parliament but this was disapplied for the Withdrawal Agreement by section 32 of the EU (Withdrawal Agreement) Act 2020.

The Withdrawal Agreement set out that the UK would enter a transition period when it left the EU while the terms of the UK-EU future relationship were negotiated. This would last from 1 February 2020 – 31 December 2020.  

The Withdrawal Agreement includes the Northern Ireland Protocol. It protects the rights of UK and EU citizens living in the territory of the other and sets out the UK’s financial obligations to the EU. It established governance arrangements to oversee its implementation. The Welsh and Scottish governments do not attend these meetings.

Parts of the Protocol were changed by the Windsor Framework in February 2023. Although the Protocol still exists, both agreements are often referred to together as the Windsor Framework.

The EU (Withdrawal Agreement) Act:

1. gives effect to the Withdrawal Agreement in domestic law; and
2. dealt with other separation issues, like how EU law would apply in the UK during and after the transition period. One important example is that a new body of law, called retained EU law (REUL), would be created at the end of the transition period.

The Welsh Government recommended the Senedd withhold consent to the EU (Withdrawal Agreement) Bill.

The UK left the EU at 11pm GMT on 31 January 2020 when the Withdrawal Agreement entered into force at midnight CET. This started the Brexit transition period which would end on 31 December 2020.

During the transition period, arrangements stayed mostly the same. For example, the UK stayed in the EU’s Single Market and customs union, contributed to the EU’s budget and continued to apply the EU’s laws and rules. However, the UK was no longer represented in EU institutions and it had no voting rights. The UK’s 73 MEPs, including four from Wales, vacated their seats on 31 January 2020.

The transition period started a countdown for the UK and EU to agree the terms of their post-Brexit relationship, which would start from 1 January 2021.

Negotiations continued throughout 2020 on what would later become the Trade and Cooperation Agreement, announced on 24 December 2020.

The UK Internal Market Act (UKIMA):

1. establishes the presumption that (in general) goods, services and professional qualifications that can be sold or recognised in one part of the UK should be able to be sold or recognised in any other part, even if the law there is different;
2. introduces “market access principles” for goods and services. These mean that, even if the Senedd passes a law to ban or regulate a particular product, it can only be enforced on something produced in Wales or imported directly into Wales from outside the UK. Anything that comes into Wales from another part of the UK doesn’t have to comply with this law if it falls within the scope of the Act, unless it is specifically excluded;
3. establishes an Office for the Internal Market which can investigate the impact of legislation proposed or made by any of the four legislatures of the UK on the operation of the UK Internal Market; and
4. places duties on Welsh Ministers in respect of the Northern Ireland Protocol and Northern Ireland’s place in the UK internal market.

UKIMA doesn’t affect the Senedd’s legislative competence but it does impact the practical effect of its laws once they are in force.

A key amendment was agreed during the Bill’s passage through the House of Lords which enables areas governed by a common framework to be excluded from the scope of the Act. However, only UK Government Ministers can add exclusions to the Act. Learn more from our summary of the Act.

The Welsh Government recommended the Senedd withhold consent to the Bill. 

The TCA is an international treaty between the UK and EU. It deals only with their cooperation after Brexit.

It was agreed on 24 December 2020 and signed on 30 December 2020. It applied provisionally from 1 January 2021 and entered fully into force on 1 May 2021, after approval from the European Parliament and European Council.

Agreements on nuclear cooperation and the security of classified information were agreed alongside the TCA.

International treaties are subject to a scrutiny process in the UK Parliament but this was disapplied for the TCA by section 36 of the EU (Future Relationship) Act 2020.

The Act:

1. implements the TCA, the Civil Nuclear Agreement and the Security of Information Agreement, in domestic law;
2. gives Welsh Ministers powers to implement the TCA in devolved areas;
3. set procedures for the exercise of Welsh Ministerial powers at the Senedd; and
4. made further provision relating to the UK-EU future relationship, including requiring all domestic legislation to be read in accordance with the TCA retrospectively.

The Brexit transition period ended on 31 December 2020.

To minimise disruption and maintain the status quo, EU law as it was on this date was converted into domestic law, creating a snapshot in time of EU law. This new body of UK law was named retained EU law, or REUL.

In 2023, The UK Government would introduce legislation giving UK and Welsh Ministers wide ranging powers to make changes to REUL. This is the Retained EU Law (Revocation and Reform) Act 2023.

The TCA and accompanying agreements applied provisionally from 1 January 2021 and entered fully into force on 1 May 2021, after approval from the European Parliament and European Council.

The Welsh Government published analysis of the implications of the new UK-EU relationship for Wales and Welsh businesses on 12 February 2021.

The TCA entered fully into force on 1 May 2021, after approval from the European Parliament and European Council.

The Northern Ireland Protocol is part of the Withdrawal Agreement, an international treaty between the UK and EU.

The Bill would:

1. disapply parts of the Northern Ireland Protocol and the Withdrawal Agreement in domestic law;
2. empower UK Ministers to disapply more parts in future and to put new arrangements in place without the EU’s input or consent;
3. enable UK Ministers to pass on their regulation-making powers to Welsh Ministers; and
4. allow UK Ministers to determine scrutiny arrangements at the Senedd.

The Welsh Government recommended the Senedd withhold consent to the Bill. The Bill’s scrutiny led to unprecedented debate on the role of international law at the Senedd and how it should respond.

The Bill did not proceed as a condition of the Windsor Framework.

The Windsor Framework changed parts of the Northern Ireland Protocol in relation to trade, the UK’s internal market, and Northern Ireland’s say in decision-making.

The UK Government agreed not to proceed with the Northern Ireland Protocol Bill. The EU agreed:

• not to proceedwith seven infringement proceedings it had against the UK; and
• to proceed with granting the UK access to the EU’s science and research programmes, including the €96 billion Horizon programme.

The Framework is credited with improving UK-EU relations and was generally welcomed by the Welsh Government despite it not having been consulted on the changes. The Welsh Government would later consent to UK regulations to implement the Framework.

Learn more in our article, Wales and the Windsor Framework.

To minimise disruption when exiting the EU, the UK converted EU law to domestic law and called it retained EU law (REUL). This meant that pre-Brexit laws stayed in place with the aim of avoiding gaps in important areas like product standards, animal welfare and employment law. REUL became a distinct body of law but there are different views on what should be done with it.

The Act puts some of the UK Government plans for REUL into place and grants powers to UK and Welsh Ministers to make future changes.

The Welsh Government recommended the Senedd withhold consent to the Bill in all five of its Legislative Consent Memorandums (LCMs). LCMS are laid in the Senedd when a UK Bill covers policy areas devolved to Wales. Members then vote on whether or not the Senedd should give consent for the UK Parliament to legislate on its behalf.

The Act:

1. revoked some REUL so it expired on 31 December 2023. This is the 587 items of REUL listed on Schedule 1, EU-derived rights, the principle of supremacy and general principles of EU law;
2. renamed remaining REUL “assimilated law” from 1 January 2024;
3. grants UK and Welsh Ministers powers to amend, repeal and replace REUL and assimilated law more easily;
4. grants UK and Welsh Ministers powers to recreate the effect of REUL supremacy to a limited extent in relation to specific instruments;
5. provides domestic courts with greater discretion to depart from REUL case law; and
6. repealed the Business Impact Target as part of other regulatory reforms.

There is no requirement on the UK Government to obtain consent from the Welsh Ministers, nor the Senedd, when making changes in devolved areas.

The UK Government’s programme of REUL/assimilated law reform is ongoing and an informal consent arrangement is in place whereby the Welsh Government’s consent is sought, regardless. The Welsh Ministers have informally granted consent on this basis to UK regulations making changes in devolved areas, like the environment. To date, single statutory instruments have been used to revoke up to 93 pieces of REUL at a time.

Learn more on our webpage, The Retained EU Law Act: where are we now?

The Northern Ireland Executive was sworn into office for the first time in two years on 3 February 2024. This followed publication of the Safeguarding the Union Command Paper by the UK Government on 31 January and new regulations passed on 1 February. These make changes to address the Democratic Unionist Party’s (DUP) concerns about the Windsor Framework.

Safeguarding the Union:

• established new NI-GB governance structures;
• changed trade rules to incentivise and boost NI-GB trade; and
• provided over £3 billion to the Northern Ireland Executive to address public sector pay pressures and provide an updated Barnett formula for Northern Ireland.

One regulation extended the UK Internal Market Act (UKIMA) 2020’s market access principles to goods from NI. It requires UK Ministers to issue guidance on how to comply with the duty in section 46 of UKIMA to have special regard to NI’s place in the UK internal market and customs territory. Devolved ministers must now have regard to this guidance when carrying out relevant functions.

Learn more in our article, Wales and Safeguarding the Union.