The European Union (Withdrawal Agreement) Act 2020

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Jane Lambert

The European Union (Withdrawal Agreement) Act 2020 received royal assent on 23 Jan 2020 and is now law. Its purpose is "to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50 (2) of the Treaty on European Union which sets out the arrangements for the United Kingdom's withdrawal from the EU". It consists of 42 sections divided into 5 parts with 5 schedules.

It will be recalled that the withdrawal agreement addresses citizen's rights, the border between Northern Ireland and the Irish Republic and the United Kingdom's contribution to the EU budget.  It also provides for an implementation period during which time the UK remains a member of the customs union and single market but ceases to be part of the EU. Accordingly, EU law continues to apply to the UK even though HM government will have ceased to be represented on the European Council and there will be no members of the European Parliament from the UK. The agreement is accompanied by the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom.  The implementation period was intended to run from 29 March 2019 until 31 Dec 2020 but as the date of the UK's departure has been extended three times it will now last 11 months from 31 Jan to 31 Dec 2020.

Part 1 of the Act amends the European Union Withdrawal Act 2918 by inserting three new sections and one new Part into Schedule 2 of the 2018 Act.  Those new sections are s.1A which suspends the repeal of the European Communities Act 1972 during the implementation period, s.1B which makes further provision for the preservation of EU law during that period, and s.8A which enables ministers to make regulations to modify EU legislation after the end of the implementation period.  The new Part 1A confers a similar power on the devolved authorities which will apply two years after the end of the implementation period. 

S.5 of the European Union (Withdrawal Agreement) Act 2020 inserts a new s.7A into the European Union Withdrawal Act 2018 which transposes the provisions of the withdrawal agreement into English and Welsh, Scots and Northern Irish law.  S.6 inserts a new s.7B which makes similar provision in relation to agreements with Iceland, Liechtenstein and Norway and Switzerland on the UK's withdrawal from the European Economic Area.

Part 3 of the Act (s.7 to s.17) deals with citizens' rights.  S.18 inserts a new s.8B into the European Union Withdrawal Act 2020 which allows ministers to make further regulations in relation to separation issues.  S.20 provides for the funding of the UK's contribution to the EU budget.  S.21 inserts a new s.8C and s.22 a new Part 1C into Schedule 2 of the European Union Withdrawal Act 2018 to implement the protocol on Northern Ireland in the withdrawal agreement.   S.23 and Schedule 3 continues the safeguards in the Belfast Agreement. S.24  continues cooperation between the United Kingdom and Northern Ireland with the Republic of Ireland.

Perhaps the most important of the remaining provisions of the act is s.33 which inserts a new s.15A into the European Union Withdrawal Act 2020 preventing ministers from agreeing to extensions of the implementation period.  Any such extension will, therefore, require primary legislation which should not be a problem given the government's commanding majority in the House of Commons.

Anybody wishing to discuss this article or the UK's withdrawal from the EU generally may call me on 020 7404 5252 during office hours or message me through my contact form.

The UK's Future Relationship with the EU - The Commission sets out its Negotiating Position

Michel Barnier

Author Foto-AG Gymnasium Melle
 Licence CC BY-SA 3.0
Source Wikimedia Commons

Jane Lambert

I have updated my pages on the European Union (Withdrawal Agreement) Bill which will ratify the draft agreement of 19 Oct 2019 on the terms of the United Kingdom's withdrawal from the European Union and the negotiations on the UK's future relationship with the EU in accordance with the political declaration.  The bill completed its committee stage in the Lords and I have linked to the reports of the debates in Hansard.  In the future relationship page, I have inserted links to the Commission's and the British government's press releases on Mr Johnson's meeting with President von der Leyen in London on 8 Jan 2020, transcripts of the President's press conference with the Irish Taoiseach or prime minister and Monsieur Michel Barnier's speech at the European Commission's representation in Stockholm on 9 Jan 2020.

In his speech, Monsieur Barnier described the withdrawal agreement as a kind of divorce:

"We have now organised an orderly divorce. But now, the UK will automatically, mechanically, legally, leave 600 international agreements.
And we will have, together – EU and UK, and the UK for its part, alone – to rebuild everything. That is what is at stake for the next stage of the negotiations.
So we have a huge amount of work ahead of us if we are to secure an ambitious new partnership between the EU and the UK."

He warned:

"If we fail, the transition period will end on 1 January 2021 without any arrangements for a new future relationship in place.

• This would not affect the issues covered in the Withdrawal Agreement: the financial settlement, and, thankfully, the deal we have reached on the island of Ireland and on citizens would still stand.

• But it would mean the return of tariffs and quotas: a total anachronism for interconnected economies like ours."

So, the European Commission is already preparing for the negotiations and has prepared documents on its position on

• transport,  
• energy 
• level playing field and sustainability 
• fisheries 
• a free trade agreement, and
• data protection.

I shall be discussing some of those documents - in particular, those relating to intellectual property and data protection - in more detail in this and related publications over the next few months.

In his Stockholm speech, Monsieur Barnier said:

"Yes, the UK represents 9% of all EU27 trade.
But more significantly, the EU27 accounts for 43% of all UK exports and 50% of its imports.
So, it is clear that if we fail to reach a deal, it will be more harmful for the UK than for the EU27.
All the more so because EU Member States can rely on each other or on the many other partners that the EU has free trade agreements with."

It is important to note that the EU did not cave in to British demands over Northern Ireland.  It was, as the DUP have said many times, the other way round.

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

The UK's Future Relationship with the EU - Ursula von der Leyen's Speech and Meeting with Johnson

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Jane Lambert

If the draft agreement on the terms of the UK's departure from the European Union is ratified, that country will cease to be a member state of the European Union at 23:00 on 31 Jan 2020.  The European treaties and legislation will continue to apply to the UK until 31 Dec 2020.  Thereafter a new relationship will subsist between the UK and the remaining member states.

The nature of that relationship will depend on negotiations between the British government and the Commission which can begin only after the UK leaves the EU. Some indication as to the parties' aspirations can be gleaned from President Ursula von der Leyen's speech at the London School of Economics on 8 Jan 2020 and the press release of her meeting with Mr Boris Johnson that took place later that day.

In her speech, President von der Leyen warned that any future relationship between the UK and EU cannot and will not be the same as before. She continued that it cannot and will not be as close as before

"because with every choice comes a consequence. With every decision comes a trade-off. Without the free movement of people, you cannot have the free movement of capital, goods and services. Without a level playing field on environment, labour, taxation and state aid, you cannot have the highest quality access to the world’s largest single market.  The more divergence there is, the more distant the partnership has to be."

The President added that without an extension of the transition period beyond 2020, agreement on every single aspect of the new partnership cannot be expected and that parties would have to prioritize. The EU's objectives will be to work for solutions that uphold the integrity of the EU, its single market and its customs union and on that, there can be no compromise.

The press release stated that the Prime Minister was ready to start negotiations on the future partnership and Canada-style FTA as soon as possible after 31 Jan.  That did not sound a million miles away from the President's position:

"But we are ready to design a new partnership with zero tariffs, zero quotas, zero dumping. A partnership that goes well beyond trade and is unprecedented in scope. Everything from climate action to data protection, fisheries to energy, transport to space, financial services to security. And we are ready to work day and night to get as much of this done within the timeframe we have."

For the rest of this year, this blog will monitor the negotiations for the UK's future partnership with the EU on the New Relationship Negotiations page as well as the progress of the European Union (Withdrawal Agreement) Bill and negotiations for new trade agreements with the USA and other third countries.

Anyone wishing to discuss this article or the consequences of the UK's withdrawal from the EU generally may call me on +44 (0)20 7404 5252 during normal UK office hours or send me a message through my contact form.

European Union (Withdrawal Agreement) Bill - Index Page

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

Jane Lambert

On 19 Oct 2019 HM Government negotiated a draft agreement on the terms of the UK's withdrawal from the European Union and a political declaration setting out the framework for the UK's future relationship with the EU in accordance with art 50 (2) of the Treaty on European Union which I discussed in The Revised Draft Withdrawal Agreement and Political Declaration on 21 Oct 2019.  The UK will leave the EU in accordance with art 50 (3) of the Treaty when this Agreement comes into effect.  In order to come into effect, the agreement must be ratified by the UK Parliament.

A bill to ratify the agreement known as the European Union (Withdrawal Agreement) Bill was introduced in the last Parliament which I discussed in the European Union (Withdrawal Bill on 22 Oct 2019.  The Bill received a second reading but MPs could not accept the very tight time limits for debate in a programme motion. The Bill was withdrawn and a general election was held in which the public was given a choice between parties with very different positions on brexit.  The Conservatives favoured withdrawal on the terms of the draft agreement, the Labour Party favoured negotiating an alternative agreement the terms of which were to be put to the public in a second referendum, the Liberal Democrats favoured withdrawing the notice to quit the EU and the Brexit Party favoured leaving the EU with no withdrawal agreement at all.

The election was won by the Conservative Party which introduced a new European Union (Withdrawal Agreement) Bill on 19 Dec 2019.  The new Bill was similar but not identical to the previous one and I discussed those similarities and differences in European Union (Withdrawal Agreement) Bill Second Time Around on 22 Dec 2019.  That Bill received its second reading on 20 Dec 2019 (see Hansard 2nd reading) and is now in committee.  To assist readers to follow the progress of the legislation I have created an index page on the Bill which will be updated regularly.  Readers may wish to bookmark this page and return to it from time to time until the Bill becomes law.

Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 or get in touch through my contact page.

Brexit Briefing December 2019

Results of the 2019 General Election

Author Brythones

Licence CC BY-SA 4.0 

Source Wikipedia 2019 General Election

Jane Lambert

Having won the 2019 general election, the government has the votes to enable the European Union (Withdrawal Agreement) Bill to pass without substantial amendment. It is therefore likely that the United Kingdom will leave the European Union at 23:00 on 31 Jan 2020 upon the terms of the draft withdrawal agreement of 19 Oct 2019.  I discussed the Bill in European Union (Withdrawal Agreement) Bill Second Time Round on 22 Dec 2019 and the agreement in The Revised Draft Withdrawal Agreement and Political Declaration on 21 Oct 2019.

While that is not the outcome for which many businesses, politicians and individuals had hoped and campaigned since the 2016 referendum, it does at least bring certainty.  The UK's departure from the EU on 31 Jan 2020 will be followed by an 11 month implementation period during which EU law will remain in force at the end of which there will be a new relationship with the 27 remaining EU member states. The precise nature of that relationship is not yet clear but the parties have agreed a Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

Clause 33 of the Bill will insert a new s.15A into the European Union (Withdrawal) Act 2018 which will prevent ministers from agreeing to any extension of the implementation period. Previous free trade agreements between the EU and third countries have taken years to negotiate.  While there is nothing to prevent negotiations on a new relationship between the UK and EU from continuing after the 31 Dec 2020 the legal framework between the parties that is to be preserved by the withdrawal agreement will fall away at the end of this year unless something is agreed to continue or replace it.  That could be just as disruptive for businesses and individuals in the UK and the remaining member states as British withdrawal from the EU without a withdrawal agreement would have been.

Over the coming months, this publication will monitor negotiations between the UK and EU on the future relationship.  It will report changes in the law, particularly those relating to intellectual property. It will look out for any opportunities that may arise from the UK's departure from the EU such as new trade agreements with the USA and other countries.

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