Explanatory Notes

Clause 6: General implementation of related EEA EFTA and Swiss agreements

120 This clause concerns the general implementation of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. This clause ensures a consistent approach across these Agreements by following the same approach to implementation to that set out in clause 5.

121 This is done by broadly replicating the approach taken in Article 4 of the Withdrawal Agreement and applying that to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. This is achieved by ensuring that subsections (1) and (2) of clause 6 mirror subsections (1) and (2) of clause 5.

122 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 EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement are given legal effect in the UK. This means that they will apply directly without the need for the UK Parliament to pass further domestic implementing legislation. This also means that the limited category of dynamic provisions of these agreements will flow through the ‘conduit pipe’ of this clause into domestic law as they update post-exit. While there is no express requirement in these Agreements to provide for implementation in this manner, this approach ensures consistency across the Agreements and, subject to any differences between the Agreements, gives rise to consistent rights and remedies for EEA EFTA and Swiss individuals and firms, and EU individuals and firms. Subsection 3 provides that in the unlikely event of any conflict between the terms of either the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement on the one hand, and the Withdrawal Agreement on the other, the terms of the latter shall take precedence.

123 Specifically, subsection (1) provides for rights, powers, liabilities, obligations and restrictions remedies or procedures that would from time to time be created or arise, or be provided for, by or under the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement, and which would, in accordance with Article 4(1) of the Withdrawal Agreement be required to be given legal effect or used in the UK without need for further enactment, to apply in the UK as if Article 4(1) of the Withdrawal Agreement applied to them and those Agreements were part of EU law and the relevant EEA States and Switzerland were Member States.

124 Subsection (2) makes clear that the rights and obligations etc arising from the Agreements, and which will apply directly in the UK by virtue of subsection (1) are to be recognised in domestic law and enforced, allowed and followed accordingly.

125 Subsection (3) provides that enactments are to be read and have effect subject to subsection (2). ‘Enactment’ is currently 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 passed after the Bill. Thus the effect of this clause is to ensure that any past or future enactment (except for the new section 7A of the EU (Withdrawal) Act 2018 but otherwise including an enactment contained within that Act) will take effect subject to subsection (2).

126 Subsection (4) of new section 7B directs the reader to look also at the specific parts of the Bill which give specific further legislative effect to other relevant parts of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreements also covered by clause 6 - namely, citizens’ rights, interpretation of law relating to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement, power in connection with certain EU and EEA separation issues, and powers involving the devolved authorities in connection with certain EU and EEA separation issues. This list is not definitive, and the reader should look to all pieces of legislation which may be relevant, when seeking to clarify what clause 6 applies to.

127 Subsection (5) defines ‘the relevant EEA states’ as Norway, Iceland and Liechtenstein.

128 Subsection (6) provides definitions for the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.

 

Prepared 19th December 2019