Monday, 1 February 2021

EU law and Domestic law: the on-going relationship (3) - Relevant Separation Agreement law

 

This post continues the overview as to how EU law continues to have influence in the UK's domestic legal systems. 

An earlier post 28 January  set the general scene and the post on 30 January looked at Retained EU Law.

A further category - provided for by the European Union (Withdrawal Agreement) Act 2020 - is Relevant Separation Agreement Law.

The Withdrawal Act does much of its work by inserting additional sections into the European Union (Withdrawal) 2018 Act (link is to the latest available version).

Definition of Relevant Separation Agreement Law:

The term Relevant Separation Agreement Law is defined in the 2018 Act section 7C(3) - In this Act “relevant separation agreement law” means -


"(a) any of the following provisions or anything which is domestic law by virtue of any of them -

(i) section 7A, 7B, 8B or 8C or Part 1B or 1C of Schedule 2 or this section, or

(ii) Part 3, or section 20, of the European Union (Withdrawal Agreement) Act 2020 (citizens' rights and financial provision), or

(b) anything not falling within paragraph (a) so far as it is domestic law for the purposes of, or otherwise within the scope of - (i) the withdrawal agreement (other than Part 4 of that agreement), (ii) the EEA EFTA separation agreement, or (iii) the Swiss citizens' rights agreement, 

as that body of law is added to or otherwise modified by or under this Act or by other domestic law from time to time."

The definition in section 7C(3)(a) has several elements. 7(C(3)(b) is a residual category of relevant separation agreement law - see below.

General implementation of remainder of withdrawal agreement:

Section 7A

The Withdrawal Agreement Article 4 is headed - "Methods and principles relating to the effect, the implementation and the application of this Agreement." 

Article 4 then goes on to provide that - "The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States"

and then

"Accordingly, legal or natural persons shall in particular be able to rely on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law."

The Withdrawal Agreement came about as a result of Article 50 Treaty on European Union - (i.e. the mechanism under which the UK left the EU). Under the UK's "dualist system", the agreement requires domestic legislation in order to have legal effect within the UK.

Such legislation was enacted by the European Union (Withdrawal Agreement) Act 2020 which inserted Section 7A into the 2018 Act.

Section 7A applies to provisions in the Withdrawal Agreement and ensures that directly effective withdrawal agreement provisions are recognised and available in domestic law, and are enforced, allowed and followed.

Section 7B operates in a similar way in relation to the EEA/EFTA Separation Agreement and the Swiss Citizens' Rights Agreement.

Citizens' Rights:

Part 3 of the 2020 Withdrawal Agreement Act (sections 7 to 17)

The Citizens' Rights provisions address matters such as:

  • rights relating to entry and residence - section 7
  • frontier workers - section 8
  • restrictions on rights to entry and residence - section 9
  • grounds for deportation (section 10) - and appeals (section 11)
  • professional qualifications - section 12
  • coordination of social security systems - section 13
  • non-discrimination and equal treatment - section 14
  • Independent Monitoring Aurthority - powers to hold inquiries and to bring judicial review - section 15 establishes the IMA and also see Schedule 2.

Section 16 makes supplementary provision relating to Regulations.

Section 17 deals with Interpretation of Part 3.

Domestic Regulations:

Sections 8B and 8C together with Parts 1B and 1C of Schedule 2 to the 2018 Act

Section 8B(1) Power in connection with certain other separation issues - enables a Minister of the Crown to make such provision as the Minister considers appropriate - (a) to implement Part 3 of the withdrawal agreement (separation provisions), (b) to supplement the effect of section 7A in relation to that Part, or (c) otherwise for the purposes of dealing with matters arising out of, or related to, that Part (including matters arising by virtue of section 7A and that Part).

For the scrutiny procedures of regulations made under section 8B, see Schedule 4 

Section 8C is a similar power relating to the Northern Ireland Protocol.

This heading (Domestic Regulations) contains several categories where powers to make Regulations apply. They are not analysed further here due to space.

Financial provisions:

The Withdrawal Agreement deals with the financial settlement consequential upon Brexit.

Section 20 sets up a legislative mechanism to authorise payment of the financial obligations.

Residual Category:

Section 7C) defines "relevant separation agreement law" and creates a residual category of relevant separation agreement law - see s.7C(3)(b). This is a broad category

Section 7C is set out in full near the start of this post.

A further post will consider the European Union (Future Relationship) Act 2020

The Northern Ireland Protocol:

Under the terms of the Protocol on Ireland/Northern Ireland, concluded as part of the Brexit withdrawal agreement, the CJEU continues to have jurisdiction over the operation of EU law applying to Northern Ireland in relation to customs and the movement of goods, technical regulations, VAT and excise, the Single Electricity Market and State aid, and may hear applications for preliminary rulings made by Northern Irish courts.[

Posts in this series:

EU law and Domestic law: the on-going relationship (1)

EU law and Domestic law: the on-going relationship (2) - Retained EU Law 

EU law and Domestic law: the on-going relationship (3) - Relevant Separation Agreement Law

EU law and Domestic law: the on-going relationship (4) - Future relationship

Other reading:

Pavlos Eleftheriadis (Professor of Public Law, Mansfield College) – Eleven types of post-Brexit EU law

EU Law Analysis blog - Professor Steve Peers

Monckton Chambers - EU Relations Law and the series by barrister Jack Williams - EU Relations Law - Relevant Relationship Agreement Law: a guide for the perplexed

House of Commons Library 30 July 2019 - The status of retained EU law

1 February 2021

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