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European Union (Withdrawal Agreement) Bill Contents

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The European Union (Withdrawal Agreement) Bill

Chapter 1: Introduction

Overview

1.The European Union (Withdrawal Agreement) Bill (“the Bill”) was introduced in the House of Commons on 19 December 2019 and received its second reading the following day. The Bill was passed by the Commons unamended on 9 January 2020 and sent to the House of Lords the same day.1 An earlier version of the Bill was introduced towards the end of the previous session and received second reading in the House of Commons but made no further progress before Parliament was dissolved ahead of the general election in December 2019.2

2.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”).

3.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, or giving effect, to:

• the Withdrawal Agreement’s implementation period
• three separate but related international agreements
• citizens’ rights
• the Ireland/Northern Ireland protocol to the Withdrawal Agreement
• several broad secondary law-making powers
• a complex ongoing relationship with EU law both during the implementation period to 31 December 2020 and for the life of the Withdrawal Agreement. This has implications for the relationship between the Bill and the status of “retained EU law” in the 2018 Act and for parliamentary sovereignty, a principle expressly recognised by the Bill.

4.The Bill should therefore be read alongside the Withdrawal Agreement and related Agreements, and with the 2018 Act. A brief introduction to these is set out in the following section.

5.In November 2019 we published an interim report which analysed the previous Bill and the constitutional issues it engaged.3 It examined the implications of the complex ongoing relationship between UK law and EU law during the implementation period, the provisions on citizens’ and workers’ rights, the Ireland/Northern Ireland Protocol and the broad secondary law-making powers in the Bill. The purpose of this report is to expand on our earlier work and identify the areas of the revised Bill that require scrutiny and amendment.

6.This Bill contains several new provisions that did not feature in its previous form. These are:

• Reporting on the use of certain dispute procedures relating to the work of the Joint Committee, which will oversee implementation of the Withdrawal Agreement (new clause 30)4
• Prohibiting an extension of the implementation period (new clause 33)
• Prohibiting UK ministers from using the written procedure to take decisions in the Joint Committee (new clause 35)
• Repealing unnecessary or spent enactments, including parts of the European Union (Withdrawal) Act 2018 and European Union (Withdrawal) (No. 2) Act 2019 (new clause 36)
• Removing the Government’s existing obligations (under the 2018 Act) regarding unaccompanied children seeking asylum who have family members in the UK and replacing them with a duty to make a policy statement to Parliament within two months of the Bill passing (new clause 37).

7.Several provisions that featured in the earlier version of this Bill have been removed in this iteration:

• Parliament’s role in approving any extension of the implementation period (old clause 30)
• Parliament’s oversight of the negotiations on the future relationship with the EU (old clause 31)
• Protection for workers’ rights (old clause 34 and old schedule 4).

8.Other modifications to the Bill include changes to when UK courts may depart from Court of Justice (CJEU) case law (clause 26), revised proposals for parliamentary scrutiny of EU law made during the implementation period (clause 29) and changes to the arrangements for the proposed Independent Monitoring Authority (schedule 2).

The Withdrawal Agreement and related Agreements

9.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 2018.5 Following further negotiations in 2019, a revised Withdrawal Agreement and Political Declaration were published on 19 October 2019.6

10.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,7 and the Swiss Citizens’ Rights Agreement between the UK and Switzerland8—were concluded on 20 December 2018.

11.The Agreement contains six parts and three protocols:

• Part 1 Common Provisions
• Part 2 Citizens’ Rights
• Part 3 Separation Provisions
• Part 4 Transition
• Part 5 Financial Provisions
• Part 6 Institutional and Final Provisions
• Protocol on Ireland/Northern Ireland and Annexes to Ireland/Northern Ireland protocol
• Protocol on Sovereign Base Areas of UK in Cyprus
• Protocol on Gibraltar.

12.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

13.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 in 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 to 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.

14.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.9 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,10 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.11

15.We then conducted an inquiry into the Bill and produced a final report ahead of its second reading in the Lords.12 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 clarify how UK courts should treat the case law of the CJEU; 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.13 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.14

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