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. 

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.

Brexit Briefing October 2019

Author Toby Ord  Licence CC BY-SA 2.5  Source Wikipedia Halloween

Jane Lambert

The UK did not leave the European Union at 23:00 last night for the reasons I explained in Johnson accepts art 50 (3) Extension of 28 Oct 2019 and it is unlikely to do so until after 13 Dec 2019 at the earliest.  Instead, there is to be a general election on 12 Dec 2019.  Brexit is undoubtedly an issue in that election and at present, it is probably the most important one but that may change as the campaign develops.

Voters have a clear choice between:

• Immediate revocation of the notification of intention to withdraw from the European Union under art 50 (2) of 29 March 2017 in accordance with the decision of the Court of Justice in Wightman and others v Secretary of State for Exiting the European Union ECLI:EU:C:2018:999, [2018] 3 WLR 1965, [2018] EUECJ C-621/18, [2018] WLR(D) 747, EU:C:2018:999 which is the policy of the Liberal Democrats;
• Exiting the EU on the terms of the draft withdrawal agreement of 19 Oct 2019 which is the policy of the Conservatives;
• Negotiating yet another withdrawal agreement and putting any renegotiated terms with an option to remain to the public in a second confirmatory vote which appears to be the policy of the Labour Party; and 
• Breaking off negotiations for a withdrawal agreement and just leaving which appear to be policies of the Brexit Party and the United Kingdom Independence Party.

Business owners and members of the public at large will have to decide for themselves which works best for them when casting their vote. Regardless of their personal preferences, they will have to watch the campaign and follow the polls closely so that they can take investment decisions that will take advantage of, or protect their business from, the consequences of a particular outcome. For instance, if they envisage that the election will result in an environment that will make it harder or more expensive to conduct business with the 27 remaining member states from the UK they may wish to accelerate the transfer of part of their undertaking to one of those remaining member states.

As this is a legal and not a political blog I do not expect to say much on the campaign.  Indeed, there is unlikely to be a November Brexit Briefing or anything else until after 13 December 2019. Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Johnson accepts Art 50 (3) Extension

Rt Hon Boris Johnson MP

Licence OGK V 3

Jane Lambert

Art 50 (3) of the Treaty of European Union provides that the European treaties will cease to apply to a state that gives notice of its intention to withdraw from the European Union from the date an agreement on the terms of its withdrawal comes into force or two years from its notification unless the European Council, in agreement with the Member State concerned, unanimously decides to extend that period.

Although a draft withdrawal agreement was reached by negotiators for the British government and the European Union on 14 Nov 2018, it was rejected by the United Kingdom Parliament on no less than three occasions.  As a result of those rejections, the government of the United Kingdom requested and was granted two extensions the latter of which was due to end at 23:00 on 31 Oct 2019.

Largely as a result of concessions that would result in an internal frontier within the United Kingdom, the British government has negotiated a second withdrawal agreement.  That has still to be approved by the Commons in a meaningful vote though the European Union (Withdrawal Agreement) Bill which would implement the agreement has got as far as second reading.

Under the provisions of the European Union (Withdrawal) (No 2) Act 2019 the prime minister was obliged to apply for a further extension if a withdrawal agreement was not approved by a meaningful vote on 19 Oct 2019, The prime minister complied with that obligation with less than the best of grace. Today the Council consented to the extension request in accordance with art 50 (3). Had it not been the European Union (Withdrawal) (No 2) Act 2019 the British government could have declined the offer of an extension but the statute removes his right to do so.  By a letter dated 28 Oct 2019, the prime minister has grudgingly accepted the offer of an extension until 31 Jan 2020.

As there are probably enough Labour MPs who would vote for the withdrawal agreement but nowhere near enough who would vote for a second referendum the overwhelming likelihood is that the second withdrawal agreement would be approved with the result that the UK would have left the European Union in the next few weeks.   The only way to stop it would be to hold a general election at the earliest possible moment and hope that parties in favour of remaining in the EU will improve sufficiently on their performance in 2017 to force a second referendum if not an outright revocation of the notice to withdraw.  That is an enormous longshot for the remain parties and it is not one that is likely to be understood easily by the public.   However, it is the only option that they have left.

Anyone wishing to talk about the prime minister's acceptance of an extension or brexit generally is welcome to call me on 020 7494 5252 during office hours or send me a message through my contact page.

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. 

The Revised Draft Withdrawal Agreement and Political Declaration

SRt Hon ir Kier Starmer QC MP

Author Chris McAndrew
Licence Parliamentary  Digital Service
Source Wikipedia Kier Starmer 

Jane Lambert

Although I have my views on brexit just like everybody else, I try to keep them to myself in this blog.  Here I discuss the legal issues arising out of our decision to withdraw from the European Union, particularly for the startups and small and medium enterprises that I advise and represent.

On Thursday 19 Oct 2019, the government published the draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northen Ireland from the EuropeanUnion and the European Atomic Energy Community and the draft Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.  These can be compared with the draft agreement and the political declaration of 14 Nov 2018.

I have not yet had time to go through those drafts provision by provision and in view of the political uncertainties, I am not sure that it would be a good use of my time if I did.  But the Ri Hon Sir Kier Starmer QC MP, the shadow secretary of state for exiting the European Union, and his assistants clearly have done for he delivered a comprehensive forensic critique of the draft instruments in the Commons on Saturday (see  Keir Starmer blasts holes in blasting holes in "Government’s damaging plans, a trap-door to no-deal" ProductiehuisEU YouTube 19 Oct 2019).  The government has promoted the 19 Oct draft agreement as an achievement but from the little I have read of it, it seems to have been the result of concessions particularly over Northern Ireland.  Readers can, of course, make up their own minds from the links in this article.

Anyone wishing to discuss this article or brexit generally may call me on 020 7404 5252 during office hours or send me a message through my contact page.