Explanatory Notes

Interaction with the EU (Withdrawal) Act 2018 and secondary legislation

23 EU rules and regulations will continue to apply in the UK during the implementation period. The Bill, therefore, amends the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’ and the domestication of historic Court of Justice of the European Union (CJEU) case law can take place at the end of the implementation period rather than on ‘exit day’. The Bill defines this point in time as ‘IP completion day’ at clause 39.

24 It also includes a power to allow Ministers, following consultation with the judiciary, to change how the EU (Withdrawal) Act 2018 provides for courts to interpret saved historic CJEU case law after the implementation period. Regulations may enable named members of the judiciary to determine the test (and the relevant considerations to apply to it) in deciding whether to depart from any retained EU law.

25 The Bill also amends the deficiency-correcting powers in the EU (Withdrawal) Act 2018 to allow them to correct deficiencies arising both from withdrawal (i.e. from the UK leaving the EU and ceasing to be a Member State) and from the termination or any other effect of the implementation period or the Withdrawal Agreement. For instance, deficiencies could arise where:

a. the law does not function appropriately or sensibly because of the UK’s exit from the EU and the end of the implementation period, such as where a piece of legislation references an obligation ‘under EU law’, which no longer applies at the end of the implementation period. This reference may need to be amended, for instance, to a reference to the obligation under retained EU law, in order for the piece of legislation to continue to function usefully.

b. reciprocal arrangements which, as a result of Part 4 of the Withdrawal Agreement, no longer apply to the UK at the end of the implementation period. For instance, during the implementation period, the UK will need to continue to report to the European Commission on many issues. On ‘IP completion day’, the reference to the European Commission could be removed or replaced with reference to a domestic UK body or replacement UK domestic regime.

26 The amendments will not affect the procedures for the scrutiny of secondary legislation made under the EU (Withdrawal) Act 2018, including the system set out in paragraph 3 of Schedule 7 to that Act requiring the ‘sifting’ of certain statutory instruments proposed to be made by the ‘negative’ procedure.


Prepared 19th December 2019