1.Please find below explanations in response to your letter to the Department dated 14 November 2018.
a) whether the words “and to be enforced” in regulation 2 are intended to prevent the enforcement after exit day of rights and liabilities accrued and incurred before that day.
2.Yes, the words “and to be enforced” in regulation 2 are intended to prevent the enforcement after exit day of rights and liabilities accrued and incurred before that day.
3.Article 87 of the Treaty establishing the European Atomic Energy Community Euratom Treaty (“the Treaty”) confers an “unlimited right of use and consumption” over special fissile materials - which under Article 86 of the Treaty are owned collectively by the Euratom Community - onto the legal holders of those material. However, Article 87 provides that this right is subject to the holders of the materials complying with the obligations imposed on them by the Treaty. On exit day, the right is retained in domestic law as a result of the European Union (Withdrawal) Act 2018, but the obligations on which the right is contingent cease to apply in the United Kingdom. The intended effect of the words “and to be enforced” is that all and any rights derived from Article 87 (including accrued rights) cease to be enforceable in domestic law on exit day because the conditions under which those rights are available (compliance with the Treaty obligations) no longer apply. Furthermore, the collective ownership of the materials under Article 86, which gives rise to the need to set out in Article 87 the extent of the rights and obligations of the legal holders, also ceases on exit day.
b) whether it is assumed that section 16 of the Interpretation Act 1978 applies in this situation;
4.We assume that this is a reference to section 16(1)(c) of the Interpretation Act 1978. It is not assumed that this applies for the reasons set out below.
5.Article 87 is retained EU law by virtue of section 4(1) of the European Union (Withdrawal) Act 2018 (saving for rights etc. under section 2(1) of the European Communities Act 1972). The effect of section 4(1) is that rights which were available in domestic law by virtue of the European Communities Act 1972 before exit day continue to be available and enforceable after the United Kingdom has left the European Union and the Treaty. Regulation 2 in this instrument disapplies the savings made by section 4(1) in respect of any rights derived from Article 87 to ensure that those rights cease to be available and enforceable on exit day for the reasons set out above.
c) if it does, whether the words “and to be enforced” are intended as a contra-indication of that section.
6.As explained above it is not assumed that section 16(1)(c) of the Interpretation Act 2016 applies. Accordingly, the words and “to be enforced” are not intended as a contra-indication of that section.
Department for Business, Energy and Industrial Strategy
19 November 2018
10 Article 87 of the Treaty: Member States, persons or undertakings shall have the unlimited right of use and consumption of special fissile materials which have properly come into their possession, subject to the obligations imposed on them by this Treaty, in particular those relating to safeguards, the right of option conferred on the Agency and health and safety.
11 Article 86 of the Treaty: Special fissile materials shall be the property of the Community. The Community’s right of ownership shall extend to all special fissile materials which are produced or imported by a Member State, a person or an undertaking and are subject to the safeguards provided for in Chapter 7.
12 Section 16(1)(c) of the Interpretation Act 1978 sets out that the repeal of an enactment does not (unless the contrary intention appears) affect any right privilege, obligation or liability accrued or incurred under that enactment.
13 Section 4 of the EU (Withdrawal) Act 2018:
(1) Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day—
(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and
(b) are enforced, allowed and followed accordingly, continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).
Published: 30 November 2018