Explanatory Notes

Clause 27: Dealing with deficiencies in retained EU law

293 EU law will generally apply in the UK until the end of 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 CJEU case law, can take place at the end of the implementation period. It also amends the deficiencies power at section 8 of the EU (Withdrawal) Act 2018 so that it will still work in light of the implementation period.

294 This clause amends the power at section 8 of the EU (Withdrawal) Act 2018 to extend it so that it can operate on deficiencies that result from the end of the implementation period or any other effect of the withdrawal agreement. It is necessary to do this because the power will need to operate on ‘retained EU law’ as it stands at the end of the implementation period.

295 Subsection (1) establishes that this section will amend the section 8 power of the EU (Withdrawal) Act 2018.

296 Subsection (2) amends section 8(2) of the EU (Withdrawal) Act 2018 so that the power is available to correct deficiencies arising from withdrawal and the end of the implementation period. This subsection establishes the circumstances in which deficiencies in retained EU law can arise, and therefore which the power provided at section (8)(1) can work upon. This includes:

a. amendments to section 8(2)(d)(ii) to enable it to deal with deficiencies arising from any arrangements that are dependent upon the UK’s membership of the EU or Part 4 of the Withdrawal Agreement and no longer exist or are no longer appropriate;

b. amendments to section 8(2)(e) to enable it to deal with deficiencies arising from provisions on reciprocal or other arrangements between the UK and other EU Member States that are no longer in place or are no longer appropriate as a result of the UK ceasing to be a party to any of the EU Treaties or as a result of the end of the implementation period or any other effect of the withdrawal agreement;

c. the inclusion of an additional deficiency which the section 8 power can operate upon, where retained EU law is not clear in its effect as a result of uncertainty from the saving and exceptions to EU law in sections 2 to 6 and Schedule 1 of the EU (Withdrawal) Act 2018, which includes the glosses applied during the implementation period (subsection (2)(c)); and

d. amendments to section 8(2)(f)(i) of the EU (Withdrawal) Act 2018 so that the deficiencies power can be used where elements of directives have not been implemented into UK domestic law by IP completion day, but it is nonetheless appropriate to retain them.

297 Subsection (3) amends section 8(4) of the EU (Withdrawal) Act 2018 to substitute the reference to ‘exit day’ to ‘IP completion day’. This ensures that retained EU law will not be deficient just because the EU subsequently makes changes to EU law when it no longer applies in the UK by virtue of Part 4 of the Withdrawal Agreement. The subsequent divergence between UK and EU law will not therefore by itself make domestic law deficient.

298 Subsection (4) removes the restriction on the deficiencies power being used to implement the Withdrawal Agreement at section 8(7)(e) of the EU (Withdrawal) Act 2018. For example, this means the power could be re-exercised to revoke deficiencies SIs due to come into force at the end of the implementation period if they would breach provisions of the Withdrawal Agreement that will apply after the end of the implementation period, such as the arrangements on citizens’ rights.

299 Subsection (5) extends the sunset on the deficiencies power at section 8(8) so that it will expire two years after the end of the implementation period rather than two years after exit day. The existing sunset would allow the government limited time following IP completion day to identify and correct deficiencies with this power. It is possible that some deficiencies will only become apparent after the conversion of EU law has taken place and time will be needed to make the necessary legislation to fix them.

300 Subsection (6) clarifies that a deficiency ‘arising from the withdrawal of the United Kingdom from the EU’ in section 8(1) of the EU (Withdrawal) Act 2018 includes within its definition deficiencies which arise from the end of the implementation period or any other effect of the Withdrawal Agreement.

301 Further, subsection (6) provides that the meaning of deficiency can cover a deficiency that arises out of withdrawal taken together with the operation of, or interaction between, provisions of the EU (Withdrawal) Act 2018 or this Bill.

302 Subsection (7) substitutes references to ‘exit day’ across Part 1 of Schedule 2 of the EU (Withdrawal) Act 2018 to ‘IP completion day’. Part 1 of Schedule 2 provides the devolved authorities, and a Minister of the Crown acting jointly with a devolved authority, with power corresponding to the power in section 8 of that Act. The references to ‘exit day’ in paragraph 4(a), 8(2)(a)(i), 9(2)(a)(i) and 10(2)(a)(i) of Schedule 2 are amended to ‘IP completion day’ as a result of the implementation period.

 

Prepared 19th December 2019