Monday 23 December 2019

The European Union (Withdrawal Agreement) Bill


The European Union (Withdrawal Agreement) Bill will implement the Withdrawal Agreement under which the UK will leave the EU on 31 January 2020.  The Bill also gives legal effect to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.  See the government's policy paper and other explanatory material - EU (Withdrawal Agreement) Bill.

A bill with the same Title was presented to the previous Parliament but fell with the dissolution of that Parliament. The new Bill
is not identical to the earlier version. Significant changes have been made and some features of the earlier Bill are now absent.

On Thursday 19 December, the day of the Queen's Speech, the new Bill received its first reading in the House of Commons. On Friday 20 December, the bill passed its second reading (358 to 234) and a programme motion was passed (353 to 243) committing a wholly inadequate 3 days (7 to 9 January) in the Commons for the further stages of the Bill.  See Hansard 20 December 2019 for the debate.

Removed from the Bill:

Certain clauses in the earlier Bill are no longer present. (They were probably in the earlier Bill in  order to try to secure the support of some Opposition MPs).

Under the earlier Bill, Ministers would have been able to agree in the Joint Committee an extension to the Implementation Period if the House of Commons agreed.  This has been removed and the new Bill prohibits Ministers agreeing to an extension.

Ministers would have had to inform the Commons of negotiating objectives for the future relationship with the EU and Commons approval would have been required. This has been removed.

A Clause and Schedule on Workers' retained EU rights was removed - see House of Commons Library - Removal of Workers' Rights in the new Withdrawal Agreement Bill

A large part of UK employment law is grounded in EU law. These include issues such as working time, holiday pay, maternity rights and discrimination. As a member of the EU, the UK cannot currently reduce these rights below the minimum level set by EU law – but they can choose to introduce greater rights. The future of such rights is now much less clear. However, it seems certain that workers' rights will figure in the trade negotiations during 2020. The government included an Employment Bill in the Queen's Speech but details have yet to be revealed.

The removal of these items should be a matter for concern as to the form that Brexit will ultimately take and it appears that Parliament is likely to have less say in the outcome.  See the discussion by Maddy Thimont Jack in Prospect 23 December 2019. 

New features:

A number of notable new features appear in the Bill. These include prohibiting Ministers from agreeing to an extension of the implementation period (new Clause 33) and Clause 37 removing the government's existing obligations (under section 17 of the EUWA) with regard to unaccompanied children seeking asylum in the EU who have family members in the UK.  The latter is replaced with a duty to make a policy statement to Parliament within 2 months of the Act passing.

The Guardian 14 January 2020 - Child refugees: peer refuses to drop fight to keep protections


Various clauses in the earlier Bill have been changed.  These include:

Clause 26 - permitting Ministers to make regulations to specify the circumstances in which lower courts may depart from the rulings of the Court of Justice of the European Union (CJEU) after the implementation period.

Clauses 31 and 32 remove domestic statutory obstacles to ratifying the Withdrawal Agreement. Clause 31 repeals section 13 of the EU (Withdrawal) Act 2018 (EUWA) and Clause 32 disapplies Part 2 of the Constitutional Reform and Governance Act 2010 with regard to the Withdrawal Agreement;

The earlier Bill gave the House of Commons European Scrutiny Committee a role in relation to developments in EU law of “vital national interest” to the UK during the transition or implementation period.  That role remains in the new Bill and the House of Lords European Union Committee is given an equivalent role.


European Communities Act 1972 - ECA72

EU Official Journal - Withdrawal Agreement and Political Declaration 12 November 2019

European Union (Withdrawal) Act 2018 - EUWA2018

European Union (Withdrawal Agreement) Bill - Session 2019-20

This Bill differs in significant ways from the earlier bill with the same title and changes from the earlier version may be seen at Tracked changes: Bill introduced in December 2019 compared to Bill introduced in October 2019 (PDF)

Explanatory Notes for the new Bill are at  Bill 001 EN 2019-20 | PDF version

House of Commons Library - The new Withdrawal Agreement Bill: What's changed?


Structure of the bill:

The new Bill divides into 5 Parts - (1) Implementation Period, (2) Remaining Implementation of Withdrawal Agreement, (3) Citizens' Rights, (4) Other subject areas, (5) General and Final Provision.  There are 42 clauses in the bill and 5 Schedules. 

Part 1 - Implementation Period:

Under the withdrawal agreement there is to be an implementation (or transition) period commencing on Exit Day (i.e. 11 pm on 31 January 2020) and lasting until 11 pm on 31 December 2020 (referred to as 'IP completion day').

Ever since 1 January 1973, the European Communities Act 1972 has been the conduit, enacted by Parliament, to give effect in UK domestic law to the law of the European Union. The 1972 Act is repealed on Exit Day.

However, the bill (Clause 1) preserves the effect of key elements of the ECA72. It does this by inserting a new section 1A into the EUWA2018 which, for the duration of the implementation period (IP), reinstates the ECA72 but with modifications. (Exp Notes Clause 1).

Clause 2 inserts a new section 1B into the EUWA2018 to ensure that existing EU-derived domestic legislation continues to operate properly during the implementation period. (Exp Notes Clause 2).

Clause 3 gives Ministers of the Crown a supplementary power in connection with the implementation period. This power is inserted into the EU (Withdrawal) Act 2018 as new section 8A.
(Exp Notes Clause 3)

Clause 4 inserts a new Part 1A, Supplementary powers in connection with implementation period, into Schedule 2 to the EUWA2018. That Schedule confers on devolved authorities certain powers corresponding to powers conferred on a Minister of the Crown by the 2018 Act. (Exp Notes Clause 4).

Part 2 - Remaining implementation of Withdrawal Agreement:

Clause 5 gives effect to Article 4 of the Withdrawal Agreement, on the methods and principles relating to the effect, the implementation, and the application of the Withdrawal Agreement. (Exp Notes Clause 5).  Clause 5 inserts a new section 7A into the EUWA2018.

Clause 6 concerns the general implementation of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. This clause ensures a consistent approach across these Agreements by following the same approach to implementation to that set out in clause 5.  This is done by broadly replicating the approach taken in Article 4 of the Withdrawal Agreement and applying that to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.  (Exp Notes Clause 6). Clause 6 inserts a new section 7B into the EUWA2018.

Part 3 - Citizens' Rights:

Citizens' Rights are the subject of Part 3 of the Bill - clauses 7 to 17. This part of the bill gives Ministers numerous powers to make secondary legislation to give effect to the citizens' rights part of the withdrawal agreement - i.e. Withdrawal Agreement Part 2 Arts. 9 to 39. There will be an Independent Monitoring Authority (IMA) to monitor how government complies with its obligations.

Clause 7 - Rights related to residence: application deadline and temporary protection - Exp Notes Clause 7

Clause 8 - Frontier workers - Exp Notes Clause 8

Clause 9 - Restrictions on rights of entry and residence - Exp Notes Clause 9

Clause 10 - Retention of existing grounds for deportation  - Exp Notes Clause 10

Clause 11 - Appeals against citizens' rights immigration decisions - Exp Notes Clause 11

Clause 12 - Recognition of professional qualifications - Exp Notes Clause 12

Clause 13 - Co-ordination of social security systems - Exp Notes Clause 13

Clause 14 – Non-discrimination, equal treatment and rights of workers etc - Exp Notes Clause 14

Clause 15 – Independent Monitoring Authority for the Citizens' rights agreements - Exp Notes Clause 15

Clause 16 – Regulations: Supplementary - Exp Notes Clause 16

Clause 17 – Interpretation: Part 3 - Exp Notes Clause 17

Part 4 - Other subject areas:

Part 4 comprises Clauses 18 to 37.

Clause 18 - Main power in connection with other separation issues - This clause, inserted as new section 8B of the EUWA2018 provides Ministers of the Crown with a power to implement the Other Separation Issues, which form Part 3 of the Withdrawal Agreement and Part 3 of the EEA EFTA Separation Agreement. Ministers can only use this power in connection with those Parts. It is designed to enable implementation of the Other Separation Issues in domestic law and to supplement the effect of new section 7A and new section 7B.- (Exp Notes Clause 18). 

Clause 19 - Powers corresponding to Clause 18 involving devolved authorities - (Exp Notes Clause 19). 

Clause 20 - Financial Provision - This clause allows for payments to be made to the EU for the purposes of complying with any Withdrawal Agreement obligations.  Clause 20(1)  allows payments to be made from the Consolidated Fund (or from the National Loans Fund if so directed by the Treasury) for the purposes of complying with payment obligations provided for in the Withdrawal Agreement.  Clause 20(2) provides that payments authorised under the standing service provision at subsection (1) will cease on 31 March 2021, with the exception of sums relating to the traditional own resources of the EU.  (Exp Notes Clause 20).

Clause 21 - Ireland / Northern Ireland Protocol - This clause provides Ministers of the Crown with the power to implement the Protocol on Ireland/Northern Ireland (hereafter ‘the Protocol’). To that end, this clause inserts a new section 8C into the EU (Withdrawal) Act 2018. (Exp Notes Clause 21).

Clause 22 - Powers corresponding to section 21 involving devolved authorities - a corresponding power to that at clause 21 allowing devolved authorities to make regulations to implement the Protocol in areas of devolved competence, inserting a new Part 1C into Schedule 2 to the EU (Withdrawal) Act 2018. (Exp Notes Clause 22).

Clause 23 - Protection for certain rights, safeguards etc. in Belfast Agreement.  This clause is a signpost to Schedule 3, which contains provisions relating to the implementation of Article 2(1) of the Protocol in the Withdrawal Agreement. (Exp Notes Clause 23)

Clause 24 - No alteration of North-South co-operation - This clause inserts two new subsections into section 10 of the EU (Withdrawal) Act 2018 (entitled ‘Continuation of North-South co-operation and the prevention of new border arrangements’). (Exp Notes Clause 24)

Clause 25 - Retention of saved EU law at end of Implementation Period. 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. (Exp Notes Clause 25)

Clause 26 - Interpretation of retained EU law and relevant separation agreement law - This clause defines the term ‘relevant separation agreement law’ and provides for rules of interpretation in order to ensure that as far as they are applicable, that body of law is interpreted in accordance with the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. 

It also allows for a Minister of the Crown, acting after consultation, to provide regulations on how UK courts can interpret retained EU law, including providing for the circumstances under which relevant courts or tribunals are not bound by retained EU case law. The regulations may also set the test that is to be applied in deciding whether to depart from such retained EU case law. The regulations may, however, provide that the test may be determined by a given list of members of the judiciary. (Exp Notes Clause 26)

Clause 27 - Dealing with deficiencies in retained EU law - 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.  (Exp Notes Clause 27)

Clause 28 -  Ancillary fee-charging powers - (Exp Notes Clause 28)

Clause 29 -  Review of EU legislation during Implementation Period - This clause will insert a new section 13A into the EU (Withdrawal) Act 2018. It provides additional parliamentary scrutiny for new EU legislation that is made or may be made during the implementation period. (Exp Notes Clause 29)

Clause 30 - Certain dispute procedures under withdrawal agreement - This clause inserts a new section 13B into the EU (Withdrawal) Act 2018 that requires a Minister of the Crown to provide Parliament with a written statement where, after the IP, certain formal dispute procedures are used between the UK and EU. (Exp Notes Clause 30)

Clause 31 - Repeal of EUWA2018 section 13 - Subsection (1) of clause 31 repeals section 13 of the EU (Withdrawal) Act 2018, to ensure that the Withdrawal Agreement can be ratified in a timely and orderly manner, and to remove provisions that are no longer needed. (Exp Notes Clause 31)

Clause 32 -  Requirements in Part 2 of CRAGA - Clause 32 disapplies section 20 of the Constitutional Reform and Governance Act 2010 in relation to the Withdrawal Agreement. This enables ratification of the Withdrawal Agreement to take place without the conditions of section 20 having been met, and avoids any additional delay that could be created by the 21 day process. The provision does not extend to future modifications of the Withdrawal Agreement agreed by the Joint Committee, to which section 20 may apply. (Exp Notes Clause 32)

Clause 33 - Prohibition on extending implementation period - This clause prevents the extension of the implementation period. It does so by prohibiting a Minister of the Crown agreeing to an extension in the Joint Committee. This is a domestic law measure; Article 132 of the Withdrawal Agreement is unchanged. (Exp Notes Clause 33)

Clause 34 - Ministerial co-chairs of the Joint Committee. (Exp Notes Clause 34)

Clause 35 - No use of written procedure in the Joint Committee. (Exp Notes Clause 35)

Clause 36 - Repeal of unnecessary or spent enactments. (Exp Notes Clause 36)

Clause 37 - Arrangements with the EU about unaccompanied children seeking asylum. Clause 37 amends subsection (1) of section 17 of the EU (Withdrawal) Act 2018 to remove the obligation to seek to negotiate such an agreement and replace it with a requirement to make a statement to Parliament.  (Exp Notes Clause 37) and also see House of Commons Library 23 December 2019 - Family Reunion Rights and the EU (Withdrawal Agreement) Bill

Part 5 General and Final Provision:

Clause 38 -  Parliamentary Sovereignty - (Exp Notes Clause 38)

Clause 39 -  Interpretation - (Exp Notes Clause 39)

Clause 40 -  Regulations - (Exp Notes Clause 40)

Clause 41 -  (Exp Notes Clause 41)

Clause 42 -  Extent, Commencement and Short Title - (Exp Notes Clause 42)


Schedule 1 - Powers of devolved authorities under sections 12,13 and 14. (Exp Notes Schedule 1)

Schedule 2 - Independent Monitoring Authority for Citizens' Rights Agreements. (Exp Notes Schedule 2)

Schedule 3 - Protection for certain rights, safeguards Belfast Agreement. (Exp Notes Schedule 3)

Schedule 4 -  Regulations under this Act - (Exp Notes Schedule 4)

Schedule 5 - Consequential, Transitional and Saving Provision. (Exp Notes Schedule 5)

The Explanatory Notes also contain a List of Related DocumentsAnnex A looking at Territorial Extent and Application in the UK, and Annex B Glossary of Terms

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