Explanatory Notes

Other separation issues

40 The Bill provides for the application of EU law in the UK to be brought to an orderly conclusion at the end of the implementation period, particularly in respect of ongoing processes and arrangements. The provisions on the Other Separation Issues provide the technical basis for the winding down of those arrangements to ensure an orderly withdrawal and provide legal certainty for individuals and businesses. For example, the arrangements mean that goods that are placed on the UK or EU market under EU law before the end of the implementation period may continue to circulate freely between the UK and the EU until they reach their end users.

41 The future economic and security relationship between the UK and the EU could supersede the separation provisions agreed in many cases. This may then require new substantive arrangements to be agreed and put in place between the UK and the EU to ensure a smooth and orderly transition from the implementation period to the future relationship. The arrangements set out in the Other Separation Issues are without prejudice to negotiations on the UK’s future relationship with the EU.

42 The Other Separation Issues all relate to areas currently governed by EU law. They cover:

a. goods placed on the market;

b. ongoing customs procedures;

c. ongoing VAT and Excise Duty matters;

d. intellectual property;

e. ongoing police and judicial cooperation in criminal matters;

f. ongoing judicial cooperation in civil and commercial matters;

g. data and information processed or obtained before the end of the implementation period or on the basis of the Withdrawal Agreement;

h. ongoing public procurement and similar procedures;

i. Euratom related issues;

j. Union judicial and administrative procedures;

k. administrative cooperation procedures;

l. privileges and immunities; and

m. other issues relating to the functioning of the institutions, bodies, offices and agencies of the Union.

43 Where relevant, similar agreement on these matters has also been agreed with the EEA EFTA states as part of the EEA EFTA Separation Agreement.

44 As already set out, the rights and obligations arising under the Agreements will be recognised and available in domestic law by virtue of clauses 5 and 6 of the Bill. This includes those rights and obligations contained within the Other Separation Issues. In addition to this general implementation, there will be a need to set out some further detail in domestic legislation to ensure that the Other Separation Issues are given full effect in the domestic legal system. For example, on public procurement, EU procurement rules are currently implemented in domestic regulations. These will need some technical amendments to ensure that they continue to function for procurement procedures that are ongoing at the end of the implementation period.

45 The Bill will, therefore, include provisions to enable the Government to implement the arrangements on the Other Separation Issues, as set out in Part 3 of the Withdrawal Agreement and the EEA EFTA Separation Agreement. This will be done via a power, exercisable by a Minister of the Crown, which is primarily to be used to adapt existing implementing legislation and regulations made under the EU (Withdrawal) Act 2018. The Government can use this power in areas of devolved competence, but will not normally do so without the agreement of the devolved administrations. An equivalent power will also be available to the devolved administrations, subject to the detailed provisions set out in the commentary below.


Prepared 21st October 2019