European Union (Withdrawal Agreement) Bill

Author O Flammger London (Stengel & Co. Dresden)
Source Wikipedia, The Palace of Westminster

Jane Lambert

If the revised draft withdrawal agreement that Her Majesty's government published on Saturday is to come into force, it has to be ratified by Parliament.  The bill that is intended to implement that legislation is the European Union (Withdrawal Agreement) Bill 2019-20. It was published while I was travelling from the World Intellectual Property Organization in Geneva to my home in Yorkshire so I have had only time only for the most cursory examination but readers will see that it is a very substantial piece of proposed legislation consisting of 40 clauses in 5 parts and no less than 6 schedules.

As I said yesterday in The Revised Draft Withdrawal Agreement and Political Declaration yesterday, the revised draft withdrawal agreement seems to have been achieved through major concessions some of which such as the proposed internal frontier between Great Britain and Northern Ireland will not be easy to justify.  The draft agreement has not been approved in principle by the House of Commons and the government proposes to allow Parliament no more than 3 days to scrutinize this instrument. With the best will in the world, that is a very tall order indeed.

Clause 1 of the bill would revise the European Union (Withdrawal) Act 2018 by inserting a new s.1A after s.1:

"Savings for implementation period

1A  Saving for ECA for implementation period 

(1) Subsections (2) to (4) have effect despite the repeal of the European Communities Act 1972 on exit day by section 1. 

(2) The European Communities Act 1972, as it has effect in domestic law or the law of a relevant territory immediately before exit day, continues to have effect in domestic law or the law of the relevant territory on and after exit day so far as provided by subsections (3) to (5). 

(3)  The Act of 1972 has effect on and after exit day as if —

(a) the definitions of “the Treaties” and “the EU Treaties” given by section 1 (2) to (4) (interpretation)—

(i) included Part 4 of the withdrawal agreement (implementation period), other than that Part so far as it
relates to, or could be applied in relation to, the Common Foreign and Security Policy, but
(ii) were otherwise limited to anything which falls within those definitions as at immediately before exit day so far as it is not excluded by regulations made on or after exit day by a Minister of the Crown under this sub-paragraph,

(b) the reference in section 2 (2) to the objects of the EU were a reference to those objects so far as they are applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,
(c)  section 2 (3) (payment of EU costs etc.) were omitted,
(d) in section 3 (decisions on, and proof of, EU Treaties and EU instruments etc.)—

(i) the references to the Treaties in subsections (1) and (2) included the withdrawal agreement, and
(ii) the words in brackets in subsection (1) only applied so far as they are in accordance with Part 4 of the withdrawal agreement,

(e) references in sections 5 and 6 (customs duties and common agricultural policy) to the common customs tariff of the EU, directly applicable EU provision, the exclusion of customs duties, EU arrangements and agricultural levies of the EU were to such things so far as they are applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement, and
(f)  in Part 2 of Schedule 1 (general definitions in relation to the EU)—

(i) in the definition of “EU customs duty”, the reference to directly applicable EU provision were to such provision so far as it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement, and
(ii) in the definition of “Member” in the expression member State”, after “EU” there were inserted “and for the purposes of this expression the United Kingdom is to be treated as if it were a member of the EU during the implementation period (within the meaning given by section 1A (6) of the European Union (Withdrawal) Act 2018)”.

(4) In this section “relevant territory” means the Isle of Man, any of the Channel Islands or Gibraltar. 

(5) Subsections (1) to (4) are repealed on IP completion day. 

(6)  In this Act—
“the implementation period” means the transition or implementation period provided for by Part 4 of the withdrawal agreement and beginning with exit day and ending on IP completion day;
“IP completion day” (and related expressions) have the same meaning as in the European Union (Withdrawal Agreement) Act 2019 (see section 37 (1) to (5) of that Act); European Union (Withdrawal Agreement) Bill
“withdrawal agreement” has the same meaning as in that Act (see section 37(1) and (6) of that Act). 

(7) In this Act—
(a) references to the European Communities Act 1972 are to be read, so far as the context permits or requires, as being or (as the case may be) including references to that Act as it continues to have effect by virtue of subsections (2) to (4) above, and
(b) references to any Part of the withdrawal agreement or the EEA EFTA separation agreement include references to any other provisions of that agreement so far as relating to that Part.”

Clause 2 of the bill would insert a new s.1B into the 2018 Act:

1B Saving for EU-derived domestic legislation for implementation period 

(1) Subsections (2) to (5) have effect despite the repeal of the European Communities Act 1972 on exit day by section 1. 

(2) EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day, subject as follows. 

(3) Any enactment which continues to have effect by virtue of subsection (2) is to be read, on and after exit day and so far as the context permitsor requires, as if— 

(a) any reference to an expression which is to be read in accordance with Schedule 1 to the Interpretation Act 1978 and is an expression defined by section 1 of, or Part 2 of Schedule 1 to, theEuropean Communities Act 1972 were a reference to that expression as defined by that section or that Part of that Schedule as it continues to have effect by virtue of section 1A(2) to (4) of this Act,
(b) any reference (however expressed and subject to paragraph (a)above) to—

(i) EU law,
(ii) any particular EU Treaty or any part of it,
(iii) any EU instrument, or other document of an EU entity or of the EU, or any part of any such instrument or document,
(iv ) any part of EU law not falling within sub-paragraph (ii) or (iii),
(v) any tax, duty, levy or interests of the EU, or
(vi) any arrangement involving, or otherwise relating to, theEU of a kind not falling within sub-paragraph (i), (ii), (iii), (iv) or (v), were a reference to any such thing so far as it is applicable to and in the United Kingdom by virtue of Part 4 of the withdrawal agreement,

(c)  any reference (however expressed and subject to paragraph (a) above) to the European Communities Act 1972 were or (as the case may be) included a reference to the Act of 1972 as it continues to have effect by virtue of section 1A (2) to (4) of this Act,
(d) any reference (however expressed) to the area of the EU or of the EEA included the United Kingdom,
(e) any reference (however expressed) to a citizen of the EU or a national of the EEA included a United Kingdom national (within the meaning given by Article 2 (d) of the withdrawal agreement), and 

(f) such other modifications were made as—

(i) are provided for by regulations under section 8A or Part 1A of Schedule 2, or
(ii) so far as not so provided, are necessary for any purpose of Part 4 of the withdrawal agreement and are capable of being ascertained from any such purpose or otherwise from that Part of that agreement. 

(4) Any EU-derived domestic legislation which is an enactment passed or made on or after exit day and before IP completion day is, unless the contrary intention appears, to be read in accordance with subsection (3) (and anything done or omitted to be done in connection with any such enactment is to be understood, and has effect, accordingly). 

( 5)  Subsections (2) to (4) are subject to any regulations made under section 8A or 23 or Part 1A of Schedule 2 or otherwise under this Act or under the European Union (Withdrawal Agreement) Act 2019. 

(6) Subsections (1) to (5) are repealed on IP completion day. 

(7) In this Act “EU-derived domestic legislation” means any enactment so far as— 

(a) made under section 2 (2) of, or paragraph 1A of Schedule 2 to, the European Communities Act 1972,
(b) passed or made, or operating, for a purpose mentioned in section 2 (2) (a) or (b) of that Act,
(c) relating to—

(i) anything which falls within paragraph (a) or (b), or
(ii) any rights, powers, liabilities, obligations, restrictions, remedies or procedures which are recognised and available in domestic law by virtue of section 2 (1) of theEuropean Communities Act 1972, or 

(d) relating otherwise to the EU or the EEA, but does not include any enactment contained in the European Communities Act 1972 or any enactment contained in this Act or the European Union (Withdrawal Agreement) Act 2019 or in regulations made under this Act or the Act of 2019.”

Clause 3 of the bill would enable a minister to correct any deficiencies arising from withdrawal by regulation inserting a new s.8A into the European Union (Withdrawal) Act 2018.  Clause 4 would confer a corresponding power on the devolved authorities (that is to say, the governments of Scotland, Wales and Northern Ireland) by inserting a new Part 1A with new sections 11A, 11B, 11C, 11D, 11E and 11F into the Act.

Clause 5 would insert new s. 7A into the 2018 Act to implement the revised draft withdrawal agreement into the laws of the United Kingdom.  Clause 6 would insert a new s.7B to implement the agreements with the European Economic Area, European Free Trade Association and Switzerland.

Part 3 of the bill consists of 11 clauses (7 to 17) which give effect to the provisions on citizens; rights in the draft withdrawal agreement.

Clause 20 provides for the UK's financial settlement to be paid out of the Consolidated Fund or if the Treasury so decides the National Loans Fund.

Clause 21 would enable a Minister to make regulations to implement the new Northern Ireland protocol to the revised draft withdrawal agreement including the concerning internal frontier between Great Britain and Northern Ireland.

Schedule 4 of the bill would insert a new Schedule 5A into the European Union (Withdrawal) Act 2018 in relation to workers' rights.  In any new legislation relating to those rights, Paragraph 1 of that Schedule requires a Minister to  make a statement before its second reading to the effect that "in the Minister’s view the provisions of the Bill will not result in the law of the relevant part or parts of the United Kingdom failing to confer any workers’ retained EU right (a “statement of non-regression”)" or if he or she cannot make a statement of non-regression a statement that the House wishes to proceed with the bill.

There is, of course, a lot more to the bill than that but those provisions are significant enough in themselves.  Anybody wishing to discuss them or brexit generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.