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 The bill was given a second reading but then withdrawn because Parliament would not approve the government's timetable that allowed very little time for debate.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.

Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form. 

Brexit Briefing November 2019

Author Sgt. Tom Robinson RLC/MOD
Licence OLG v.1.0
Source Wikipedia 10 Downing Street

Jane Lambert

Voters' options have narrowed since my October Brexit Briefing and, consequently, so do the likely outcomes of this election. That is why there is a November Brexit Briefing even though I said it was unlikely that I would publish one last month.

The parties have clarified their positions.   The Brexit Party is fielding candidates only in a minority of seats.  There is no longer any possibility of its forming a government.  Consequently, there is no prospect of our leaving the EU without a withdrawal agreement within the meaning of art 50 (2) of the Treaty on European Union.  Having said that, the Conservatives have announced that they will not seek an extension to the implementation period provided by art 126 of the draft withdrawal agreement after 31 Dec 2020. As it would be difficult to negotiate a comprehensive free trade agreement between the 31 Jan and 31 Dec 2020, the effect may be the same. The Labour Party has promised a referendum after renegotiating a withdrawal agreement that would align the UK closer to the European Union in which its Prime Minister would be neutral.  The leader of the Liberal Democrats has acknowledged that she is unlikely to form the next government which means that revocation of the government's notice of intention to leave the EU of 29 March 2017 is also unlikely.

As the opinion polls have consistently shown the Conservatives significantly ahead although their lead appears to have diminished recently, the likely outcomes are an overall majority for the Conservative Party - though perhaps not a very big one - or a hung Parliament.   If the Conservatives win an outright majority, they have promised to introduce legislation to ratify the draft withdrawal agreement before the end of the year.   If there is a hung Parliament in which either Conservatives or Labour emerge as the largest party, there is an outside chance that a minority administration may feel obliged to concede a second referendum.

Meanwhile, the rest of the EU is reforming intellectual property law.  In patents, the Council and Parliament adopted Regulation 2019/933 which should stimulate European generics and biosimilar companies by allowing them to manufacture for export to third countries or stockpile for launch while a supplementary protection certificate subsists. HM government appears to like that Regulation for it held a consultation on that Regulation's implementation after brexit (see my article Supplementary Protection Certificates - The Waiver Regulation 27 Nov 2019 NIPC Law).  In copyrights, the European Parliament and Council have adopted Directive 2019/790 on copyright and related rights in the Digital Single Market which should benefit data mining technologies and content providers.  Even though it is binding on the UK and could well benefit data mining and creative industries here has been very little discussion on the legislation in this country.

Anyone wishing to discuss this article should call me on 020 7404 5252 during office house or send me a message through my contact form.