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Brexit Law Blog: Archive

This blog tracked legal issues arising from Brexit. It ran from the referendum in 2016 to the last post in May of 2021.

Understanding the implementation of the Withdrawal Agreement in domestic law

Posted on 11 Feb 2020 by Brick Court

Emily MacKenzie

As explained in a previous post, the entry into force on 31 January 2020 of the UK’s Withdrawal Agreement, following its ratification by both the UK and the EU, would not in and of itself have meant that the Withdrawal Agreement had effect in UK law. Rather, legislation was required to implement it.

This was done in the form of the European Union (Withdrawal Agreement) Act 2020 (“2020 Act”), which received royal assent on 23 January 2020.

The way that the 2020 Act implements the Withdrawal Agreement is complex.

For one thing, you can’t simply read the 2020 Act as a free-standing piece of legislation. For the most part, it amends an earlier Brexit statute, the European Union (Withdrawal) Act 2018 (“EUWA”). Whilst the EUWA as originally enacted made provision in anticipation of the UK leaving the EU on “exit day” (which was originally defined as 29 March 2019 in section 20(1), but which was subsequently altered by secondary legislation), this was before there was any treaty to implement. So it is the amendments introduced by the 2020 Act that give effect to the Withdrawal Agreement in domestic law. Therefore, you have to look both at a consolidated version of the EUWA[1] and at the other bits of the 2020 Act that stand alone to see how the Withdrawal Agreement has been implemented.

That issue aside, the new provisions are themselves complicated and the devil is in the detail. What follows is necessarily a very brief canter through the most important aspects.

If you only have a minute to spare, the basics are as follows. The Withdrawal Agreement provides for a “transition” (also called “implementation”) period that currently lasts until 31 December 2020. The Withdrawal Agreement basically provides for not much to change in that period: the vast majority of EU law will continue to apply in the UK. There are five key mechanisms by which the UK legislation seeks to implement both these transitional provisions in the Withdrawal Agreement and the rest of that Agreement:

  1. The European Communities Act 1972 (“1972 Act”) is “saved” for the implementation period. This allows EU law to continue to flow into domestic law for the time being. However, what flows in is a snapshot of EU law as it stood on 31 January 2020 and not any subsequent changes. The transitional provisions of the Withdrawal Agreement also now form part of the EU law that flows in.
  2. Domestic legislation that stems in some way from EU law (“EU-derived domestic legislation”) is also saved for the implementation period. This means that no domestic legislation falls simply because of withdrawal. But some “glosses” are applied, which aim to ensure that such legislation continues to function properly.
  3. At the end of the implementation period, EU law becomes domestic law (subject to some fairly extensive exceptions) and will be known as “retained EU law”. This retention includes both EU-derived domestic legislation and “direct” EU law, as well as any rights, powers, liabilities, obligations, restrictions, remedies and procedures that came in via the 1972 Act.
  4. A new “conduit” is created so that the provisions of the Withdrawal Agreement other than those addressing the implementation period can flow into UK law.
  5. There are extensive powers to make secondary legislation to deal with all sorts of other issues, including to remedy any “deficiencies” in domestic law arising out of withdrawal and to implement other aspects of the Withdrawal Agreement, such as the provisions setting out citizens’ rights.

If you have a bit more time, the rest of this post expands on the above.

The basics of the Withdrawal Agreement

There is not space here to set out even briefly what the Withdrawal Agreement covers, but the headline contents are as follows:

  • Part 1 – “Common provisions” (i.e. setting out definitions and how the Agreement is to be interpreted and applied by the UK)
  • Part 2 – Citizens’ rights
  • Part 3 – “Separation issues” (i.e. setting out what is to happen at the end of the implementation period to ongoing matters, e.g. what happens to goods already on the market)
  • Part 4 – transition/implementation period
  • Part 5 – financial settlement
  • Part 6 – institutional and procedural provisions (e.g. the mechanism for resolving disputes about the Agreement)
  • Protocols (including the protocol on Ireland/Northern Ireland).

The “transition”, or “implementation” period agreed in Part 4 of the Withdrawal Agreement currently ends on 31 December 2020.[2] The basic principles that apply during that period are (i) that the UK is now a “third country” and thus cannot participate in EU decision-making, but (ii) the vast majority of “Union law” continues to apply to the UK.[3]

“Union law” is defined in Art. 2 to include inter alia the treaties (i.e. the TEU, TFEU, Euratom Treaty, Treaties of Accession and the Charter of Fundamental Rights), general principles of EU law and acts adopted by the EU institutions. Note that Art. 6(3) provides that references to provisions of Union law “shall be understood to include references to the relevant Union acts supplementing or implementing those provisions”.

This Union law is to be “interpreted and applied in accordance with the same methods and general principles as those applicable within the Union” (Art. 127(1) and (3)). This includes the possibility of making references to the CJEU during the transition period (Art. 86). Equally, the “bodies, offices and agencies” of the EU retain their powers of supervision and enforcement during the transition period and the CJEU retains its jurisdiction (Art. 131).

The principles of direct effect and supremacy will continue to apply. Article 4 of the Withdrawal Agreement provides that those rules apply to “the provisions of this Agreement [i.e. including the transitional provisions] and the provisions of Union law made applicable by this Agreement”. Article 4 also requires that the provisions of the Withdrawal Agreement “referring to Union law or to concepts or provisions thereof” be interpreted “in conformity” with any case law of the CJEU handed down before the end of the transition period, as well as with “the methods and general principles” of EU law.

How does the revised EUWA implement the Withdrawal Agreement?

It is worth bearing in mind that the 2020 Act is a statute that intends to implement an international treaty. As such, it must be interpreted in light of a presumption that Parliament intended to perform its international treaty obligations in enacting the statute (see, for example, Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 at 523, per Lord Wilberforce). This is, indeed, expressly recognised in the new s.7C EUWA.

As summarised above, there are five key implementation mechanisms to be aware of.

  1. Continued force of 1972 Act during the implementation period (ss.1 and 1A EUWA)

Prior to the 2020 Act, the EUWA simply provided in section 1 that the 1972 Act was repealed on exit day. Confusingly, that provision remains in force, but the 2020 Act inserted a new section 1A titled “saving for ECA for implementation period”. This means that, despite its repeal, the 1972 Act continues to have effect in domestic law in most respects until the end of the implementation period.[4]

For practical purposes, this means that (for the most part) s.2 of the 1972 Act remains as it was prior to exit day until the end of the transitional period. Therefore, EU law continues to flow into domestic law via the “conduit pipe” in s.2 of the 1972 Act.

However, the EU law that travels down this “conduit pipe” is a slightly different corpus of law to that which flowed previously. Section 2(1) of the 1972 Act has always provided that it is the rights, powers, liabilities, obligations and restrictions “from time to time created or arising by or under the Treaties” and the “remedies and procedures from time to time provided for by or under the Treaties” that form part of UK law. The new s.1A(3) of the EUWA amends the definition of “the Treaties” in section 1 of the 1972 Act in three important respects.

  • First, the EU law that is incorporated via the 1972 Act is a “snapshot”, frozen in time (see para 80(b) of the explanatory notes to the 2020 Bill). Section 1A(3)(ii) provides that the definition of “Treaties” be limited to anything which falls within the definition “as at immediately before exit day” (i.e. on 31 January 2020). So it is only the rights, powers etc. from time to time arising under the EU law that forms part of the snapshot that takes effect in UK law and not those arising under any new EU law passed during the implementation period (though it is not clear how the “from time to time” provision continues to function).
  • Second, the Crown is given the power to make regulations to exclude existing EU law from the definition of the Treaties.
  • Third, Part 4 of the Withdrawal Agreement (which contains the transitional provisions) is added into the definition of the Treaties. This means that those provisions have direct effect and supremacy etc. (via s.2 of the 1972 Act) as required by the Withdrawal Agreement.

Note that there are related changes to the way s.3 of the 1972 Act (which sets out the role of UK courts in interpreting the Treaties and the duty to decide cases in accordance with the case law of the CJEU) applies.

  1. Saving of “EU-derived domestic legislation” during the implementation period (s.1B EUWA)

The new s.1B EUWA provides that “EU-derived domestic legislation”, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day until the end of the implementation period.

“EU-derived domestic legislation” is defined in s.1B(7) very broadly. It includes enactments made under s.2(2) of the 1972 Act, but also includes enactments “relating to” such enactments, those relating to “any rights, powers, liabilities, obligations, restrictions, remedies and procedures that before exit day were recognised and available in UK law through the saved section 2(1) of the ECA 1972” and, generally, any enactments “relating otherwise to the EU or the EEA”.

This basically means that existing UK legislation and new legislation made during the implementation period[5] that derive in some way from EU law (e.g. domestic regulations implementing a Directive) will continue in force during the transition period. Or, to put it the other way around, it can’t be said that any domestic legislation ceases to have effect purely because the UK has left the EU. As the explanatory notes to the 2020 Bill explain (para 87): “EU-derived domestic legislation is saved to avoid the risk of legislation lapsing, or being impliedly repealed or emptied of meaning”.

However, the legislation in question has to be read according to various modifications, or “glosses”, listed in section 1B. These are designed to ensure the continued relevance and effectiveness of such legislation. For example, references to “EU law” are to such law as is applicable to the UK by virtue of Part 4 of the Withdrawal Agreement; references to the 1972 Act are now to the 1972 Act as it applies under s.1A, and references to the EU are to include references to the UK. These glosses apply “so far as the context permits or requires”. There is also a power to make regulations introducing further glosses.

  1. “Retained EU law”: EU law becomes domestic law at the end of the implementation period ss.2-5 EUWA.

The bulk of EU law is to be replicated into domestic law at the end of the implementation period. The 2020 amendments to the EUWA provide for a general “conversion of EU law into ‘retained EU law’” and “domestication of historic CJEU case law” at the end of the implementation period” (explanatory notes to the 2020 Bill, para 267). Previously, the EUWA provided for this to happen on exit day because that prepared in essence for a “no deal” scenario.

There are three “gateways” through which EU law may be retained, as summarised below. However, note that this general rule of retention is subject to relatively extensive exceptions.[6]

In terms of the status of “retained” EU law, generally speaking it has supremacy over conflicting UK law enacted prior to the end of the implementation period but not over UK law enacted after the end of that period (subject to exceptions): see s.5 EUWA. So, the intention seems to be that if a statute is inconsistent with retained EU law, the statute will take priority if it is passed after 31 December 2020 but the retained EU law will take priority if the statute was passed before 31 December 2020. However, there is much about the operation of these rules that is unclear and likely to be controversial.

Note that there are also complex provisions relating to the relevance and effect of Luxembourg case law in s.6 EUWA, as amended by s.26 of the 2020 Act. Essentially, UK courts are not bound by EU case law made after the end of the implementation period, but must decide any question as to the validity, meaning or effect of any “retained EU law” (so far as that law remains unmodified) in accordance with EU case law pre-existing the end of the implementation period. However, the Supreme Court is not bound by any retained EU case law and a new s.6(5A) provides for a power (exercisable only during the implementation period) to provide in regulations for other courts not to be so bound either.

The three “gateways” by which EU law will be retained after the end of the implementation period are as follows:

EU-derived domestic legislation (s.2 EUWA)

EU-derived domestic legislation (i.e. the legislation saved and modified under s.1B) as it stands at the end of the implementation period is retained at the end of that period under s.2 EUWA (as amended by s.25(1)(a) of the 2020 Act).

Direct EU legislation (s.3 EUWA)

This is defined in s.3(2) and includes EU regulations, decisions or tertiary legislation. This direct EU legislation is retained at the end of the implementation period under s.3 EUWA, as amended by s. 25(2) of the 2020 Act. However, s.25(2)(b)(ii) of the 2020 Act introduces some changes to the conditions that were set out in s.3 EUWA for such legislation to be retained. First, EU regulations/decisions/tertiary legislation must have been applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement. Second, they must not take effect by virtue of the new s.7A or B of the EUWA.[7]

Note that the following do not count as direct EU law after the end of the implementation period:

  • Anything that becomes part of EU-derived domestic law retained under s.2 (s.3(2)(b)).
  • Directives (see the definition of “tertiary legislation” in s.20), and the provisions of the Treaties themselves. However, insofar as rights arising under the Treaties are directly effective, they will be retained under s.4 as explained below. Equally, some directly effective rights arising under Directives will be retained under s.4 and/or under s. 2, if they have been transposed into domestic law.
  • The Charter of Fundamental Rights (s.5(4)). However, “any fundamental rights or principles which exist irrespective of the Charter” are unaffected by this (s.5(4)-(5)).

Rights, powers, liabilities, obligations, restrictions, remedies and procedures (s.4 EUWA)

As regards other rights etc. which are “recognised and available in domestic law by virtue of s.2(1) [of the 1972 Act]” and “enforced, allowed and followed accordingly” (i.e. under s.1A), these are retained after the implementation period under s.4 EUWA, as amended by s.25(3) of the 2020 Act.[8] Note that, as under the original EUWA, the extent to which rights arising under Directives will be retained is limited by the provision that these must have been “recognised” by the EU or UK courts in a case decided before the end of the implementation period (s.4(2)(b)).

The explanatory notes to s.4 of the EUWA give an illustrative list of TFEU articles which the government considers contain directly effective rights which would be converted into domestic law under s.4. These include, for example, non-discrimination on grounds of nationality (Art.18), free movement of workers (Arts.45(1)-(3)) and the competition and State aid provisions (Arts. 101-2 and 107-8). However, since many of these rely on membership of the EU to function, it is likely that secondary legislation will be made to address “deficiencies” in them, as discussed below.

Note that there is no right in domestic law to Francovich damages after the end of the implementation period.[9] And “general principles of EU law” will only form part of domestic law after the end of that period to the extent they were “recognised as a general principle of EU law by the European Court in a case decided before” that day (though the position in relation to the continued relevance of the general principles is complex).[10]

  1. General implementation of the rest of the Withdrawal Agreement

Section 7A EUWA is titled “General implementation of remainder of withdrawal agreement”. It contains a new “conduit” to allow rights etc. arising under the Withdrawal Agreement to flow into UK law, just as s.2(1) of the 1972 Act did in respect of the Treaties. Thus the rights etc. that arise under the Withdrawal Agreement are available in national law, have direct effect and have supremacy over conflicting domestic law, as required by Art. 4 of the Withdrawal Agreement.

Section 7B contains a similar “conduit” in respect of rights etc. arising under EEA EFTA Separation Agreement between the UK and Norway, Iceland and Liechtenstein, and the Swiss Citizens’ Rights Agreement between the UK and Switzerland.

  1. Powers to make secondary legislation

There are extensive powers to make statutory instruments contained in the EUWA and the 2020 Act. For example:

  • Section 8 EUWA confers on the executive a power to make secondary legislation to deal with deficiencies “arising from the withdrawal of the United Kingdom from the EU”. This power was expanded by amendments introduced by s.27 of the 2020 Act. The section now clarifies that deficiencies may arise from “any aspect” of withdrawal, such as “the end of the implementation period” or “any other effect of the withdrawal agreement”, or even from the operation of the EUWA or 2020 Act themselves.[11]
  • The 2020 Act inserted new powers to make secondary legislation in s.8A (a power to make secondary legislation “in connection with the implementation period”), s.8B (a power to make secondary legislation in connection with “other separation issues”, including implementing Part 3 of the Withdrawal Agreement) and s.8C (a power to make secondary legislation in connection with the Northern Ireland protocol).
  • Section 41 of the 2020 Act contains a power to “by regulations make such provision as the Minister considers appropriate in consequence of this Act”. This mirrors s.23 of the EUWA.
  • Section 41 also deals with the fact that swathes of subordinate legislation had been made under the above sections prior to the conclusion of the Withdrawal Agreement. These are known as “EU exit SIs”, and many of them modified retained EU law when it was thought that that would need to come into being on exit day in a no-deal scenario. Section 41 enacts Schedule 5, which substitutes the end of the implementation period instead of exit day, effectively creating a mass deferral of the time when these SIs will come into coming into effect (see paras 513-7 of the explanatory notes to the 2020 Bill).
  • Part 3 of the 2020 Act contains specific provisions (largely conferring powers to make secondary legislation) implementing the citizens’ rights agreed in the Withdrawal Agreement, which the government has implemented via the EU Settlement Scheme and changes to the Immigration Rules.

[1] Note that, at the time of writing, not all of the provisions of the 2020 Act are yet in force, so the version of the EUWA displayed, for example, on Westlaw, is not yet the “full” consolidated version.

[2] See Art. 126 of the Withdrawal Agreement and section 1A(6) of the EUWA, read together with section 39 of the 2020 Act, which terms the end of the implementation period “IP completion day”. Art. 132 of the Withdrawal Agreement provides that the transition period may be extended by a single decision of the Joint Committee (this comprises representatives of both the EU and the UK and is established by Art. 164) for up to 1 or 2 years. However, the new section 15A of the EUWA prohibits a Minister of the Crown from agreeing in the Joint Committee to extend the implementation period, so a further Act of Parliament overriding this would be required for such an extension to occur.

[3] The areas that do not apply relate largely to current provisions from which the UK already has an opt-out, notably (per Art. 127(1) and (5)) the single currency provisions, the Schengen acquis and certain provisions on the area of freedom, security and justice and enhanced cooperation. Art. 127(1)(b) exempts various citizens’ rights, including the right to vote in European Parliament elections. Further, Art. 137 disapplies EU funding for certain EU “programmes and activities”, such as Common Agricultural Policy payments for claim year 2020.

[4] With certain exceptions, reflecting the terms of the Withdrawal Agreement: for example, s.2(3) of the 1972 Act relating to the payment of EU costs is not saved.

[5] See s.1B(4).

[6] These are set out in s. 5 and Schedule 1, and the transitional provisions in Schedule 8.

[7] As explained below, those are provisions creating new “conduit pipes” to implement the Withdrawal Agreement (other than the transitional provisions in Part 4).

[8] This does not apply to any rights etc. which are caught by s.3 (though notably there is no equivalent carve-out for rights etc. caught by s.2, which means that some rights could be caught twice), or which come in through the new s.7A/7B conduits.

[9] Schedule 1, para 4.

[10] Schedule 1, paras 2-3, s. 6 and the explanatory notes to the 2020 Bill.

[11] Note that Schedules 4 and 7 (Part 1) contain further provisions relevant to the power to make this secondary legislation.

The final constitutional steps to withdrawal

Posted on 06 Feb 2020 by Brick Court

Emily MacKenzie

At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?

Once the Withdrawal Agreement had been agreed in negotiations in October 2019, both parties to it – i.e. the UK and the EU –  had to complete the proper processes for ratifying it in accordance with their constitutional requirements. So what did those comprise?

UK ratification

In the UK legal order, the government ratifies treaties in accordance with its prerogative powers. However, before the government could ratify the Withdrawal Agreement, an Act of Parliament was needed.

One reason why this was the case was that Parliament had made this a requirement in the European Union (Withdrawal) Act 2018 (“EUWA”), which it enacted in June 2018.

Section 13 EUWA (which came into force immediately) was headed “Parliamentary approval of the outcome of negotiations with the EU”. This was the provision requiring the so-called “meaningful vote” on any withdrawal deal. Section 13 provided that a withdrawal treaty might only be ratified if certain conditions were met. The conditions were that (i) a statement that “political agreement” had been reached, together with copies of the agreement and the framework for the future relationship, were laid before both Houses, (ii) they were approved by a resolution of the House of Commons, (iii) a motion for the House of Lords to “take note” of them was tabled and debated (or the five-day time-limit for concluding that debate had expired) and (iv) a further Act of Parliament was passed to implement the agreement.

Therefore, for the government lawfully to ratify the Withdrawal Agreement, either these conditions needed to be met, or section 13 of the EUWA needed to be repealed.

In the end, the repeal option was taken. The European Union (Withdrawal Agreement) Act 2020 (“2020 Act”) received royal assent on 23 January 2020 and, by section 31, it repealed section 13 EUWA. The explanatory notes to the Bill state that this was done “to ensure that the Withdrawal Agreement can be ratified in a timely and orderly manner, and to remove provisions that are no longer needed” (para 319).

It also dealt with a further potential hurdle: section 32 of the 2020 Act disapplied section 20 of the Constitutional Reform and Governance Act 2010 in relation to the Withdrawal Agreement. This provision ordinarily (although it permits exceptions) prevents the government from ratifying a treaty unless a copy of it is laid before Parliament and 21 sitting days are given to allow for Parliamentary scrutiny of the treaty. The explanatory notes to the Bill state that this was disapplied in relation to the Withdrawal Act to “[avoid] any delay that could be created by the 21 day process” (para 322). The notes go on to clarify that any future modifications of the Withdrawal Agreement may still have to go through the section 20 process.

So the passing of the 2020 Act permitted the government to proceed to ratify the Withdrawal Agreement. The Prime Minister signed the Withdrawal Agreement on behalf of the UK, using his prerogative powers, on 24 January 2020. The UK’s EU ambassador then gave written notification confirming the UK’s ratification of the Withdrawal Agreement to the European Council on 29 January 2020.

EU ratification

On the EU side, the requirements for ratifying the agreement were set out in Article 50(2) TFEU. That provides that an agreement must be “concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”. The European Parliament had said that it would only give its consent once the UK ratification process was complete. It therefore did so on 29 January 2020. The Council gave its vote of approval the following day, using the written procedure.

Implementing the Withdrawal Agreement in domestic law

Because the UK is a “dualist” state, the mere fact that a treaty has been ratified does not mean that it takes effect in UK law. The entry into force of the Withdrawal Agreement at 11 pm on 31 January 2020 meant that the UK was bound by that Agreement on the international plane, but domestic rights and obligations would have remained unaffected absent domestic legislation to give effect to the Agreement in national law.

This was also the role of the 2020 Act. It gives effect to the Withdrawal Agreement in UK law, including by amending the EUWA, although how it achieves this is not straightforward and will have to be the subject of a future post.