Explanatory Notes

Clause 25: Retention of saved EU law at end of implementation period

267 During the implementation period certain EU rules and regulations will continue to apply in the UK. For this reason, this clause amends the EU (Withdrawal) Act 2018 so that the conversion of EU law into ‘retained EU law’, and the domestication of historic CJEU case law, will now take place at the end of the implementation period.

268 Subsection (1)(a) amends section 2 of the EU (Withdrawal) Act 2018 so that the preservation of EU-derived domestic legislation takes effect on IP completion day rather than exit day.

269 Subsection (1)(b) removes the definition of EU-derived domestic legislation from section 2 as the term will instead be defined in new section 2(7) of the EU (Withdrawal) Act 2018.

270 Subsection (1)(c) inserts further words into section 2(3) of the EU (Withdrawal) Act 2018 providing that the preservation of EU-derived legislation is subject to new section 5A, set out at subsection (5) below.

271 Subsection (2) amends the incorporation of direct EU legislation into retained direct EU legislation at section 3 of the EU (Withdrawal) Act 2018.

272 Subsection (2)(a) amends section (3)(1) of the Act so that the incorporation of direct EU legislation takes effect on IP completion day instead of exit day.

273 Subsection (2)(b)(i) amends the reference to exit day in section 3(2)(a) to IP completion day, so that EU regulations, EU decisions and EU tertiary legislation (now known as delegated and implementing acts) are preserved as they have effect immediately before IP completion day.

274 Subsection 2(b)(ii) adds two conditions to the incorporation of EU regulations, EU decisions and EU tertiary legislation, in the form of two insertions to section 3(2)(a).

a. The first, at new subsection (ai), states that, to be retained, any EU regulation, EU decision or EU tertiary legislation must have been applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement, the implementation period. This means that any EU instruments which were not applicable during the implementation period by virtue of Part 4 of the Withdrawal Agreement will not be preserved.

b. The second, at new subsection (bi), excludes from the definition of ‘direct EU legislation’ in section 3 of the EU (Withdrawal) Act 2018, any EU regulation, EU decision or EU Tertiary legislation so far as it has effect or is to have effect by virtue of new sections 7A and 7B. These sections set up a conduit pipe through which provisions of the Withdrawal Agreement (other than Part 4), and the EEA/ EFTA and Swiss Separation Agreements will flow, including any EU regulation, EU decision or EU Tertiary legislation made applicable by the Withdrawal Agreement.

275 Subsections (2)(b)(iii) and (iv) work together to remove a condition on the incorporation of EU regulations, EU decisions and EU tertiary legislation at section 3(2)(a) of the EU (Withdrawal) Act 2018. Specifically, section 3(2)(a)(ii) of that Act is omitted, as EU decisions addressed only to a Member State other than the UK will not be applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement. Therefore, section 3(2)(ai) will instead prevent such decisions from being retained.

276 Subsection (2)(c) amends section 3(2)(b) of the EU (Withdrawal) Act 2018 which incorporates Annexes to the EEA Agreement.

a. (2)(c)(i) amends section 3(2)(b) of the Act so as to save any Annex to the EEA Agreement as it has effect immediately before IP completion day rather than exit day.

b. (2)(c)(ii) amends section 3(2)(b) of the Act so that the Annexes are only saved insofar as they have been applicable to and in the UK by virtue of the Part 4 of the Withdrawal Agreement, and not to the extent that they continue to flow into the UK via the pipeline established in new section 7A or 7B.

277 Subsection (2)(d) makes the corresponding amendments to section 3(2)(c) of the EU (Withdrawal) Act 2018 with regards to Protocol 1 of the EEA Agreement. It amends that section so as to incorporate the Protocol as it has effect immediately before IP completion day rather than exit day. It also inserts two subsections which:

a. specify that the Protocol is only saved insofar as it has been applicable to and in the UK by virtue of the Part 4 of the Withdrawal Agreement; and

b. ensure that the Protocol is not saved insofar as it is to continue to flow into the UK by virtue of the conduit pipes at new Sections 7A and 7B.

278 Subsection (2)(e) amends section 3(3) of the EU (Withdrawal) Act 2018 so as to define what it means for direct EU legislation to be operative immediately before IP completion day rather than exit day.

279 Subsection (2)(f) makes section 3 of the EU (Withdrawal) Act 2018 subject to new section 5A (savings and incorporation: supplementary) as well as to section 5 and Schedule 1.

280 Subsection (3) amends section 4 of the EU (Withdrawal) Act 2018.

a. (3)(a) amends references in section 4(1) so that any remaining EU rights and obligations which do not fall within sections 2 and 3 of the Act are preserved as they had effect immediately before IP completion day rather than exit day.

b. (3)(b)(i) inserts a new subsection (aa) to section 4(2) so as to make an exception to the saving of the remaining rights and obligations where they will continue to flow into domestic law directly by virtue of new sections 7A or 7B, for the purposes of the Agreements.

c. (3)(b)(ii) amends the reference to ‘exit day’ to ‘IP completion day’ in section 4(2)(b) of the EU (Withdrawal) Act 2018 so that rights, powers, liabilities, obligations, restrictions, remedies or procedures are not saved under section 4(1) of the Act so far as they arise under an EU Directive and are not recognised by the European Court of Justice or any court or tribunal in the UK in a case decided before IP completion day.

281 Subsection (3)(c) amends section 4 of the EU (Withdrawal) Act 2018 so it is subject to new section 5A (savings and incorporation: supplementary).

282 Subsection (4) amends section 5 of the EU (Withdrawal) Act 2018 on Exceptions to savings and incorporation.

283 Subsection (4)(a) amends that section so that the exceptions to the savings and incorporation operate on IP completion day rather than on exit day.

284 Subsection(4)(b) inserts new subsection (7) into section 5 of the EU (Withdrawal) Act 2018. The new subsection ensures that the exceptions to the savings and incorporation set out in section 5 (1) to(6) and in Schedule 1 to that Act, do not apply in relation to relevant separation agreement law as provided for by new section 7C.

285 Subsection (5) inserts a new section 5A to the EU (Withdrawal) Act 2018. New section 5A is designed to make clear that the law saved and incorporated by sections 2 to 4 of the EU (Withdrawal) Act 2018 continues to have effect on and after IP completion day, despite the fact that the law only applied for the duration of the implementation period under the Withdrawal Agreement.

286 Subsection (6) amends Schedule 1 of the EU (Withdrawal) Act 2018, on further provision about exceptions to savings and incorporation. Subsection (6)(a) amends that Schedule so that the exceptions to the preservation of retained EU law take effect on IP completion day, rather than exit day. Subsection (6)(b) makes sure that references to the principle of the supremacy of EU law, the Charter of Fundamental Rights, any general principle of EU law or the rule in Francovich are to be read as references to that principle, Charter or rule so far as it would otherwise continue to be, or form part of, domestic law on or after IP completion day by virtue of the named provisions of the (amended) EU (Withdrawal) Act 2018.

 

Prepared 19th December 2019