Tuesday, 2 February 2021

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

This is the fourth post in a series considering how, post-Brexit, EU law continues to have influence in the legal systems of the UK. The series is an overview of this complex relationship.

In December 2020, after difficult negotiations, the EU and the UK finalised the Trade and Cooperation Agreement (TCA), the  Security Procedures for Exchanging and Protecting Classified Information Agreement (SOIA) and the Nuclear Cooperation Agreement (NCA). 

The European Union (Future Relationship) Act 2020 enables particular provisions in these Agreements to have effect in domestic law. This Act was enacted in one day (30 December 2020) and an earlier blogpost looked at the Bill as introduced to Parliament.

The Act's short title is abbreviated to EU(FR)A.

Implementation by the EU(FR)A: 

Parliament has used the EU(FR)A to expressly implement some matters in the international agreements.  Sections in EU(FR)A either set out the applicable law or achieve the same result by amending other legislation.

In the three areas of Security, Trade, and Transport the EU(FR)A makes specific legislative provision. 

Part 1 deals with Security - section 1 to 13 and Schedules 1, 2 and 3. As an example, section 11 to 13 amend the Extradition Act 2003.

Part 2 deals with Trade - sections 14 to 20 and Schedule 4.

Part 3 deals with Goods.

Directly transposed provisions:

EU(FR)A also transposes into domestic law some provisions in the international agreements but does this without more detailed enactment. I refer to these as directly transposed provisions. It is probably best to avoid the terms "directly applicable" or "direct effect" in this category. (Those terms have specific meanings in EU law).

Section 22 - Administrative co-operation on VAT and mutual assistance on tax debts - provides that:

(1) The arrangements contained in the Protocol have effect (and do so in spite of anything in any enactment).

(2) The Commissioners for Her Majesty's Revenue and Customs are the competent authority in the United Kingdom responsible for the application of the Protocol.

Subsection 4 provides that “the Protocol” means - (a) the protocol, contained in the Trade and Cooperation Agreement, on administrative co-operation and combating fraud in the field of Value Added Tax and on mutual assistance for the recovery of claims relating to taxes and duties, and (b) any decision or recommendation adopted by the Specialised Committee in accordance with that protocol.

Section 26 - Social security co-ordination - provides that 

"The following provisions of the Trade and Cooperation Agreement, in its English language version, form part of domestic law on and after the relevant day - (a) the SSC Protocol; (b) Title I of Heading 4 of Part 2 (Trade); (c) Articles COMPROV.17 and FINPROV.2, so far as applying to the SSC Protocol."

This is aimed to ensuring that individuals who move between the UK and the EU will be able to protect their state pension contributions and access a range of social security benefits (including healthcare). 

The provisions provide for healthcare for people who are travelling between the UK and the EU, similar to that provided under the European Health Insurance Card (“EHIC”) scheme.

Interestingly, section 22 uses the words "have effect" whereas section 26 states "form part of domestic law." Whether anything will turn on this difference remains to be seen.

section 29 - makes provision for the general implementation in domestic law of all other, otherwise unimplemented, provisions in the Trade and Cooperation Agreement  or the  Security Procedures for Exchanging and Protecting Classified Information Agreement

Section 29(1) provides that - "Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement or the Security of Classified Information Agreement so far as the agreement concerned is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement."

It may be that section 29 will lead to uncertainty and legal difficulties in some areas - see, for example, George Peretz QC (1 January 2021) - The UK's new subsidy regime: a marsh of uncertainty.  

However, section 29 is limited in scope. (1) it does not apply to the Nuclear Co-operation Agreement. (2) It only applies to provisions in the Trade and Cooperation Agreement and the Security of Classified Information Agreement in so far as not otherwise implemented and so far as such implementation is necessary. (3) section 29 does not permit post-ratification modifications to the Agreements to enter domestic law. (4) some matters are limited to international relations alone - e.g. arbitration decisions will bind the UK and EU in international law but not in domestic law.

Implementing Regulations:

EU(FR)A prvides several powers for Ministers (and devolved authorities) to make Regulations. Note the following powers:

Section 7 - Passenger name record data - In Schedule 2 - (a) Part 1 amends the Passenger Name Record Data and Miscellaneous Amendments Regulations 2018 (S.I. 2018/598) (the “PNR regulations”);(b) Part 2 makes provision for an interim period; (c) Part 3 confers power to modify the PNR regulations to apply to sea and rail travel.

Section 21 - Powers to make regulations about movement of goods - amends the Customs and Excise Management Act 1979. This power comes into force on 1 March 2021: Regulation 3 European Union (Future Relationship) Act 2020 (Commencement No. 1) Regulations 2020.

Section 27 - The EU and Euratom and related organisations and bodies

Section 28 - Nuclear Cooperation Agreement - amends certain Statutory Instruments 

Section 31 - Implementation power - (1) A relevant national authority may by regulations make such provision as the relevant national authority considers appropriate - 

(a) to implement the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement, or

(b) therwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement, the Nuclear Cooperation Agreement, the Security of Classified Information Agreement or any relevant agreement.

(2) Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

Here is a wide "Henry VIII" power but there are some limits - see section 31(4).

Section 32 (Powers relating to the start of agreements) and Section 33 (Powers relating to the functioning of agreements)

Section 39 - Consequential and transitional provision etc. - 

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act. 

(2) The power to make regulations under subsection (1) may (among other things) be exercised by modifying any provision made by or under an enactment.

(3) Part 1 of Schedule 6 contains consequential provision.

(4) A Minister of the Crown may by regulations make such transitional, transitory or saving provision as the Minister considers appropriate in connection with the coming into force of any provision of this Act.

(5) Part 2 of Schedule 6 contains transitional, transitory and saving provision.

Interpretation:

Section 30 -  Interpretation of agreements - A court or tribunal must have regard to Article COMPROV.13 of the Trade and Cooperation Agreement (public international law) when interpreting that agreement or any supplementing agreement.

COMPROV.13 states - Public International Law - The provisions of this Agreement and of any supplementing agreements shall be interpreted in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties.

*** SUMMARY ***

The implementation of Brexit has created an incredibly complex legal labyrinth. Exploration of this requires consideration of the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020, and the European Union (Future Relationship) Act 2020. Each of those Acts creates ways in which the law of the EU continues to have influence within the UK.  - EU law and Domestic law: the on-going relationship (1)

: Three principal routes for EU law to influence domestic law : 

A] Retention of existing EU law - European Union (Withdrawal) Act 2018

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

B] Relevant Separation Agreements Law  - European Union (Withdrawal Agreement) Act 2020 - Separation Agreements Law - the Act implemented in domestic law the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.  The Withdrawal Agreement Act does much of its work by inserting additional sections into the 2018 Act.

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

C] Future Relationship Agreements Law - European Union (Future Relationship) Act 2020 - the Act implemented in domestic law the Trade and Cooperation Agreement (TCA), the  Security Procedures for Exchanging and Protecting Classified Information Agreement (SOIA) and the Nuclear Cooperation Agreement (NCA).  

Each of the principal routes subdivides "fractal-style" into a considerable number of separate pathways or, conduits) each permitting EU law to influence domestic law in some way. It is a complex and far from elegant structure and, to continue the fractal analogy, it certainly lacks the intricate beauty of the Mandelbrot set.

The complex legal UK-EU legal relationship arises from the the need to give effect in domestic law to the various agreements negotiated as a result of Brexit. This topic will require the attention of lawyers for many years to come.
 

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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