European Union (Withdrawal Agreement) Bill Second Time Round

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

Jane Lambert

On 21 Oct 2019, the government introduced the European Union (Withdrawal Agreement) Bill.  I discussed it here in European Union (Withdrawal Agreement) Bill 22 Oct 2019. The bill was given a second reading but then withdrawn because Parliament would not approve the government's timetable that allowed very little time for debate. Because there was a very real risk of the country's withdrawing from the European Union without a withdrawal agreement in place, the government and most of the opposition parties enacted legislation that permitted an early general election.

As everybody knows, that election was held on 12 Dec 2019 and the government was returned with a large parliamentary majority. The government had campaigned on the promise to enact legislation that would effect the departure of the UK from the EU in accordance with the draft withdrawal agreement of 19 Oct 2019,  Such legislation was introduced into the Commons on 19 Dec 2019 and given its second reading the next day.  Its title is the European Union (Withdrawal Agreement) Bill 2019-20. Its text as introduced is here together with explanatory notes. a delegated powers memorandum, notices of amendments, a Human Rights Act memorandum and a briefing paper on the new bill by Graeme Cowey entitled The new EU (Withdrawal Agreement) Bill: What’s changed? which has been deposited in the House of Commons Library.

The new bill is not dissimilar to the old one but there are some differences that have been helpfully identified in the briefing paper.  Mr Cowie has identified the removal of clauses:

• "giving MPs a veto over any Minister agreeing to an extension of the transition or implementation period in the Joint Committee (what was clause 30);
• giving MPs a veto over the start of future relationship negotiations with the EU, an approval role in relation to the Government’s negotiating mandate, and an enhanced Parliamentary approval process for any future relationship treaty subsequently negotiated with the EU (what was clause 31); and 
• providing additional procedural protections for workers’ rights that currently form part of EU law, but which would not be protected against modification, repeal or revocation in domestic law once the transition or implementation period has ended (what was clause 34 and Schedule 4)."

He has spotted the addition of the following new clauses:

• "reporting requirements to Parliament where the Joint Committee’s dispute procedures are used (new clause 30);
• prohibiting any UK Minister from agreeing to an extension of the transition or implementation period in the Joint Committee (new clause 33);
• prohibiting UK Ministers from using the written procedure to take decisions in the Joint Committee (new clause 35);
• the repeal of statutory provisions the Government maintains are now unnecessary or spent (new clause 36); and
• removing (via clause 37) the Government’s existing obligations (under section 17 of the EUWA) with regard to unaccompanied children seeking asylum in the EU who have family members in the UK. This would be replaced with a duty to make a policy statement to Parliament within 2 months of the Act passing."

Mr Cowie has noted the amendment of the following clauses:

• "Clause 20 (7) in the October WAB would have allowed a Minister of the Crown to extend the life of the standing service provision (under which the UK would make financial payments to the EU) beyond March 2021. The Government has removed the power to extend that provision in the current version of the Bill.
• Clause 26 has a new subsection (1). This provision allows Ministers, by regulations, to specify the circumstances in which lower courts could depart from the rulings of the Court of Justice of the European Union (CJEU) after the transition or implementation period. Without this new provision, lower courts would have had to follow the UK Supreme Court’s rulings (and the High Court of Justiciary’s rulings in Scotland) on retained EU law, but otherwise would have to follow CJEU rulings unless and until the substance of domestic law changed or those higher courts had departed from the rulings of the CJEU.
• Clause 29 provided a role for the House of Commons’ European Scrutiny Committee in relation to developments in EU law of “vital national interest” to the UK during the transition or implementation period. However, the October WAB made no provision for the House of Lords in this regard. New subsections 3-4 in the December WAB give an equivalent role to the European Union Committee of the House of Lords.
• Paragraph 10 of Schedule 2 previously would have prohibited the Independent Monitoring Authority from delegating certain of its functions to a committee, member or employee. Two functions that were prohibited in the October version of the WAB, but which are not in the December version, concern decisions to carry out inquiries or to intervene in legal proceedings. New paragraph 39 would also make it possible to transfer the functions of the IMA to another public body by regulations."

Mr Cowie reminds the public that the House of Common Library produced a series of insights and briefing papers on the old bill. Many of these remain relevant and useful but Mr Cowie counsels caution as there have been changes. In the briefing paper, he mentions the details that have changed as well as those that remain the same.

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