Clause 5: General implementation of remainder of withdrawal agreement
110 This clause gives effect to Article 4 of the Withdrawal Agreement, on the methods and principles relating to the effect, the implementation, and the application of the Withdrawal Agreement.
111 Article 4 of the Withdrawal Agreement provides for:
a. individuals and businesses to be able to rely directly on the terms of the Withdrawal Agreement to bring a claim before UK courts, where certain tests are met;
b. the disapplication of provisions of domestic law which are inconsistent or incompatible with the Withdrawal Agreement; and
c. provisions of the Withdrawal Agreement referring to EU law and its concepts to be interpreted and applied in the UK using the methods and general principles of EU law.
112 Article 4 also states that provisions of the Withdrawal Agreement which are based on EU law must be interpreted in the UK in conformity with CJEU case law handed down before the end of the implementation period, and that the UK’s courts need to have due regard to relevant CJEU case law handed down after this point when interpreting and applying relevant areas of the Withdrawal Agreement.
113 In order to give effect to Article 4, this clause, which will be inserted into the EU (Withdrawal) Act 2018, makes the rights and obligations etc in the Withdrawal Agreement available in domestic law. This clause also provides that domestic legislation must be read, and given effect, in a manner that is compatible with the Withdrawal Agreement.
114 Taken together, subsections (1) and (2) ensure that rights, powers, obligations, remedies etc as they arise or are created from time to time in the Withdrawal Agreement are given legal effect in the UK legal system. This means that they will apply directly without the need for further domestic implementing legislation. This also means that the limited category of dynamic provisions of the Withdrawal Agreement will flow through the ‘conduit pipe’ of this clause into domestic law as they update post-exit.
115 Specifically, subsection (1) provides for rights, powers, liabilities, obligations and restrictions created or arising under the Withdrawal Agreement, and remedies and procedures provided for by the Withdrawal Agreement, to apply directly in domestic law.
116 Subsection (2) makes clear that the rights and obligations etc arising from the Withdrawal Agreement and which will apply directly in the UK by subsection (1) are to be recognised in domestic law and enforced, allowed and followed accordingly.
117 Subsection (3) provides that enactments are to be read and have effect subject to subsection (2). ‘Enactment’ is defined at clause 39 and, for the purposes of the Bill, means ‘an enactment whenever passed or made’ and therefore captures legislation (examples of which are given in clause 39) even if this passed after the Bill is passed. Therefore, the effect of this clause is to ensure that any past or future enactment which does not clearly state otherwise (including any enactment contained within the Bill itself), will take effect subject to 5(2).
118 Subsection (4) makes clear that this clause will not apply in relation to Part 4 of the Withdrawal Agreement (Implementation period) so far as section 2(1) of the ECA applies in relation to that Part (or if that Part relates, or could be applied in relation to, to the Common Foreign and Security Policy).
119 Subsection (5) directs the reader to look also at the specific parts of the Bill which make further provision for giving effect to the Withdrawal Agreement - namely, citizens’ rights, financial provision, the interpretation of law relating to the Agreements etc, certain other separation issues, and the corresponding powers for the devolved administrations. This list is not exhaustive, and the reader should look to all pieces of legislation which may be relevant.