The EU (Withdrawal Agreement) Bill

Posted in UK and EU legal framework The Withdrawal Agreement

On Monday 21 October the Government published the EU (Withdrawal Agreement) Bill (the Bill), the legislation intended to give effect in domestic law to the new Withdrawal Agreement – assuming it is ratified by the UK and EU.

Notwithstanding that a key aim of EU (Withdrawal) Act 2018 (the 2018 Act) was to repeal the European Communities Act 1972 (ECA) ending the supremacy of EU law, the Bill effectively reinstates the ECA for the duration of the implementation period.  In this regard, not only will EU as at the date of Brexit remain supreme, but also new EU laws introduced during the implementation period.

Further, the Bill would grant a power to Ministers of the Crown to modify both primary and secondary legislation as appropriate to implement Part 4 of the Withdrawal Agreement. Notably, these clauses also ensure that any international agreements concluded by the EU which enter into force during the implementation period will be given effect.

During the implementation period, section 5 states that the UK’s courts need to have due regard to relevant CJEU case law handed down before the end of the implementation period and even after this point when interpreting and applying relevant areas of the Withdrawal Agreement.

The Bill also addresses the length of the implementation period and the procedure for any potential further extensions to it. The proposed implementation period completion day is 31st December 2020. However, this can be extended by up to two years according to the Withdrawal Agreement and section 30 of the Bill inserts a new section 13B into the 2018 Act which states that the House of Commons must approve a motion to approve any extension proposed by a Minister to the House of Parliament. The House of Lords must also consider a motion to take note of the Minister’s statement.

Section 31 introduces a new section 13C to the 2018 Act, requiring a Minister of the Crown to make a statement to the House no more than 30 days after “exit day” outlining the Government’s objectives for the future relationship with the EU. It also requires the Government to report back on the progress of the future relationship at the end of stated “reporting periods”.

Other matters to highlight in the Bill include the provisions relating to citizens and workers’ rights. In particular, section 15 establishes the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) to monitor the implementation and application of Part 2 of the Withdrawal Agreement – the full details of the functioning of the new authority can be found in Schedule 2 to the Bill.

On Tuesday 22 October 2019 the House of Commons voted in favour of the second reading of the Bill but rejected a proposed accelerated timetable, which would have seen it become law within 3 days. The progress of the Bill has now been paused until the EU’s reply to the UK’s request for an extension to Article 50 until 31 January 2020.

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