Explanatory Notes

Clause 2: Additional saving for implementation period

85 This clause inserts a new section 1B into the EU (Withdrawal) Act 2018. Section 1B saves existing EU-derived domestic legislation and ensures that EU-related references continue to operate properly during the implementation period.

86 Subsection (1) makes clear that subsections (2) to (5) have effect despite the repeal of the ECA on exit day.

87 Subsection (2) makes clear that EU-derived domestic legislation continues to have effect in domestic law on and after exit day, as it had effect in domestic law immediately before exit day. EU-derived domestic legislation is defined in subsection (7). EU-derived domestic legislation is saved to avoid the risk of legislation lapsing, or being impliedly repealed or emptied of meaning, given that the UK will no longer be a Member State of the EU and the ECA will have been repealed by section 1 of the EU (Withdrawal) Act 2018.

88 Specifically, so far as the context permits or requires, subsection:

a. (3)(a) makes it clear that references to the definitions listed in Part 2 of Schedule 1 of the ECA that appear in Schedule 1 of the Interpretation Act 1978 or elsewhere, have effect in EU-derived domestic legislation as they have been modified by sections 1A(2) to (4) of the EU (Withdrawal) Act 2018. For instance, the modified definition of ‘Member State’ in new section 1A(3)(f)(ii) is reflected in the definitions contained in Schedule 1 to the Interpretation Act 1978. Because the definitions in the 1978 Act apply across the statute book, new section 1B(3)(a) makes clear that references to ‘Member State’ in EU-derived legislation should pick up on the new modified definition in the ECA.

b. (3)(b)(i) provides for references to cases, general EU law principles and the term ‘EU law’ itself (among other things) to be read as they apply in the UK by virtue of Part 4 of the Withdrawal Agreement.

c. (3)(b)(ii) ensures that any reference to an EU Treaty or part of an EU Treaty, for instance provisions of the TFEU or the TEU, remain relevant insofar as those provisions continue to apply in the UK by virtue of Part 4 of the Withdrawal Agreement.

d. (3)(b)(iii) provides for references to EU measures in domestic legislation to be references to the EU instrument read in light of Part 4 of the Withdrawal Agreement.

e. (3)(b)(iv) provides that any part of EU law not caught by (3)(a)(ii) and (iii) will also be read in light of Part 4 of the Withdrawal Agreement.

f. (3)(b)(v) provides for references to any tax, duty, levy or interests of the EU to be read as continuing to apply to the UK, where applicable under Part 4 of the Withdrawal Agreement.

g. (3)(b)(vi) provides for any arrangement involving or relating to the EU not covered by existing provisions in 3(a) should be read as a reference to that arrangement provided that the arrangement is applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement.

h. (3)(c) provides that any reference to the ECA, subject to subsection 1B(3)(a), is to the saved and repurposed ECA as a result of the modifications made at 1A(2) to (4) of this Act.

i. (3)(d) makes sure that any reference to the EU or EEA territory includes the UK.

j. (3)(e) provides for references to citizens of the EU or nationals of the EEA across the UK statute book to include UK nationals, as defined in Article 2 of the Withdrawal Agreement.

k. Finally, (3)(f) provides two further glossing mechanisms:

i. first, (3)(f)(i) enables further glosses to be added by regulations made under powers located elsewhere in the EU (Withdrawal) Act 2018: in sections 8A and Part 1A of Schedule 2;

ii. second, (3)(f)(ii) directs a court or any other reader of the law to interpret EU-derived legislation, which is not the subject of a specific gloss but is capable of being ascertained from Part 4 of the Withdrawal Agreement, in line with that Part of the Agreement.

89 Subsection (4) applies the glosses in subsection (3), to any new EU-derived domestic legislation that is made or passed during the implementation period for the purposes of implementing ongoing EU obligations or otherwise relates to the EU or EEA law. It also disapplies these subsections from applying to legislation made during the implementation period which is subject to contrary intent, such as where legislation is made during the implementation period for a purpose to which the glosses should not apply.

90 Subsection (5) makes both the saving of EU-derived domestic legislation and its modification by the glosses subject to regulations made under the Bill and under the EU (Withdrawal) Act 2018, specifically regulations made under new section 8A, section 23 or Part 1A of Schedule 2. Regulations will therefore be able to make exceptions to the glosses in particular cases where applying the glosses would not produce the correct result.

91 Subsection (6) repeals subsections (1) to (5) on IP completion day.

92 Subsection (7) defines ‘EU-derived domestic legislation’. It essentially mirrors the definition in section 2 of the EU (Withdrawal) Act 2018:

a. paragraph (a) relates to secondary legislation made under the dedicated power in section 2(2) of the ECA to implement the UK’s obligations under EU law, including under paragraph 1A of Schedule 2 ECA (this allows for ambulatory cross‐references to ‘EU instruments’);

b. paragraph (b) is designed to cover legislation which, while not made under section 2(2) of the ECA, was either specifically passed (e.g. by an Act of Parliament) or made under other secondary legislation making powers for the purpose of implementing EU obligations;

c. paragraph (c) covers enactments which are connected to, but do not fall within, the definitions of domestic legislation preserved by subsection (7)(a) or (7)(b) or converted EU law. It is designed to ensure that provisions which are tied in some way to EU law, or to domestic law which implements EU law, can continue to operate properly post exit; and

d. paragraph (d) is a residual category designed to cover provisions which relate in some other way to the EU or EEA. For example, if an Act of Parliament included a cross‐ reference to a definition contained in an EU instrument or simply contained references which are EU related, those provisions would fall within the definition and would be EU-derived domestic legislation.

93 The definition of ‘EU-derived domestic legislation’ excludes any provision of the ECA, the EU (Withdrawal) Act 2018, this Bill and any provisions in regulations made under either the 2018 Act or this Bill.

94 The glosses set out in this clause will impact the devolution statutes for each devolved administration, providing for the current EU law limit on devolved competence to be modified for the duration of the implementation period. The devolution statutes limit the devolved institutions’ competence by reference to EU law. The definition of EU law is, for these purposes, tied to the ECA - it means the rights, obligations etc arising under the ‘EU Treaties’ as defined in the ECA. This Bill preserves the effect of the ECA for the purposes of the implementation period, and modifies the definition of ‘EU Treaties’ to include Part 4 of the Withdrawal Agreement. As a result, the devolved administrations will not be able to act incompatibly with Part 4 of Withdrawal Agreement, and the restrictions of devolved competence are maintained for the duration of the implementation period.


Prepared 19th December 2019