European Union (Withdrawal Agreement) Bill: interim report Contents

Chapter 1: Introduction

Overview

1.The European Union (Withdrawal Agreement) Bill (“the Bill”) was introduced in the House of Commons on 21 October 2019 and received its second reading on 22 October. The Bill passed second reading, but the programme motion setting the timetable for further consideration in the House of Commons was not approved. The Bill made no further progress ahead of the dissolution of Parliament on 6 November.

2.The purpose of this report is to provide an interim explanation and analysis of the Bill and the constitutional issues it engages. We will report further with conclusions and recommendations should this or any similar bill that is introduced in the next parliament. We do not pass judgement on the policy issues in the Bill or those related to the United Kingdom’s withdrawal from the European Union (EU) more broadly. We do not know whether a bill in this form will be introduced in the next parliament, but any bill giving effect to a withdrawal agreement with the EU will need to engage with many of the technical legal challenges that this Bill seeks to address. It is therefore valuable to explore them at an early stage—something we sought repeatedly to do over the last year by asking the Government for a copy of the Bill in draft.1

3.The Bill implements the Withdrawal Agreement as agreed between the United Kingdom and the European Union on 17 October 2019. It also implements two related agreements, the EEA EFTA Separation Agreement between the UK and Norway, Iceland and Liechtenstein, and the Swiss Citizens’ Rights Agreement between the UK and Switzerland (“the Agreements”).

4.The Bill is of the highest constitutional significance, given its intended effect. It builds on, but also amends and departs in significant ways from, the European Union (Withdrawal) Act 2018 (“the 2018 Act”). It is a complex piece of legislation containing specific provisions relating to:

5.The Bill should therefore be read alongside the Withdrawal Agreement and related Agreements, and with the 2018 Act. A brief introduction to these is below.

The Withdrawal Agreement and related Agreements

6.The UK Government and the European Commission published a draft Withdrawal Agreement on 14 November 2018. The text of this Agreement, together with a Political Declaration on the framework for future EU–UK relations, was endorsed by EU leaders at a European Council meeting on 25 November 2018.2 Following further negotiations in 2019, a revised Withdrawal Agreement and Political Declaration were published on 19 October 2019.3

7.The Withdrawal Agreement provides for the ongoing relationship between the UK and the EU during the implementation period up to 31 December 2020 and for the legal obligations which arise from this. The two related Agreements—the EEA EFTA Separation Agreement between the UK and Norway, Iceland and Liechtenstein,4 and the Swiss Citizens’ Rights Agreement between the UK and Switzerland5—were concluded on 20 December 2018.

8.The Agreement contains six parts and three protocols:

9.The annexes contain more detail on various areas of EU law where cooperation will continue during the implementation period. They also provide rules of procedure for the Joint Committee and Specialised Committees that are created to regulate the implementation of the Agreement and rules of procedure for dispute settlement.

The European Union (Withdrawal) Act 2018

10.The 2018 Act was passed on 26 June 2018. Its purpose is to provide a functioning statute book when the UK leaves the EU. The 2018 Act repeals the European Communities Act 1972 (ECA) and seeks to address comprehensively the wide-ranging impact on the law of the United Kingdom of exit from the European Union. It preserves existing EU law as it applies to the UK when it leaves the EU by converting it into domestic law. To this end it introduces the concept of “retained EU law” and provides in detail for its status and interpretation (sections 2–7). It gives extensive delegated powers to ministers (sections 8–9) and provides for equivalent powers in relation to the devolved authorities (sections 10–12). Section 13 of the 2018 Act requires parliamentary approval of the outcome of negotiations with the EU.

11.We produced three reports on this legislation. The first, published in March 2017, before notification of intention to withdraw under Article 50 of the Treaty on European Union had been issued, anticipated the constitutional issues which were likely to be raised by the “Great Repeal Bill” the Government had promised as the centrepiece of its legislation to deliver Brexit.6 Following publication of the European Union (Withdrawal) Bill, we produced a second (interim) report to coincide with the Bill’s second reading in the House of Commons,7 assessing the Bill in light of our earlier recommendations and drawing attention to the fact that many of the problems we had anticipated were manifest in that Bill.8

12.We then conducted an inquiry into the Bill and produced a final report ahead of second reading in the Lords.9 We explored the implications of the creation by the Bill of retained EU law, its status and interpretation, the delegated powers for ministers and the interaction of these powers with the devolved institutions and their competences. Members of the Committee and others in the House of Lords pressed the Government on these points during the committee stage of the Bill and, following discussions with ministers, the Government tabled amendments on several key issues. These included amendments to provide clarity on how UK courts should treat the case law of the Court of Justice of the European Union; to define the status of retained EU law in relation to its future modification; and to impose requirements on ministers to justify and explain their use of the regulation-making powers in the Bill.10 We were critical of the range and scope of delegated powers in the Bill. These were amended to provide for strengthened scrutiny and to create a sifting mechanism whereby parliamentary committees could review draft statutory instruments and recommend the level of scrutiny to which they should be subject.11


2 HM Government, Withdrawal Agreement and Political Declaration, 25 November 2018: https://www.gov.uk/government/publications/withdrawal-agreement-and-political-declaration [accessed 30 October 2019]

3 HM Government, New Withdrawal Agreement and Political Declaration, 19 October 2019: https://www.gov.uk/government/publications/new-withdrawal-agreement-and-political-declaration [accessed 30 October 2019]

4 HM Government, EEA EFTA Separation Agreement, 20 December 2018: https://www.gov.uk/government/publications/eea-efta-separation-agreement-and-explainer [accessed 30 October 2019]

5 HM Government, Swiss Citizens’ Rights Agreement, 20 December 2018: https://www.gov.uk/government/publications/swiss-citizens-rights-agreement-and-explainer [accessed 30 October 2019]

6 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123)

7 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19)

8 We concluded that the Bill was “highly complex and convoluted in its drafting and structure” and that it left “multiple and fundamental constitutional questions” unanswered. Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19), summary

9 Constitution Committee, European Union (Withdrawal) Bill (9th Report, Session 2017–19, HL Paper 69)

10 European Union (Withdrawal) Bill [Bill 5 (2017–19)], Second Marshalled List of Amendments to be Moved on Report, HL Bill 79-R-II, amendments 23–25, 83C, 83F, 83H and 83

11 European Union (Withdrawal) Act 2018, schedule 7




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