Withdrawal Agreement Bill (UK Brexit)

Exit day is 31st October – Thursday week (this date is in a Statutory Instrument)

Yesterday the government published the EU (Withdrawal Agreement) Bill – here.

There are additional documents also published, including Explanatory Notes – here.

The Bill (known as the WAB) is 115 pages, with 40 clauses and 6 schedules. It’s purpose is to give effect in domestic law to the Withdrawal Agreement that was agreed between the EU and the UK on 17th October, and to ratify that Withdrawal Agreement.

– The Bill amends the EU (Withdrawal) Act 2018 (a core existing Brexit Law) to ensure it reflects the terms of the Withdrawal Agreement. Re Brexit Law, the Bill saves the Brexit Law for the end of the transition period (in the Bill this is the IP (Implementation Period) completion day).

– The Bill creates powers to make secondary legislation (Statutory Instruments), where appropriate, to enable the Withdrawal Agreement to be implemented domestically.

– The Bill includes amendments to the Northern Ireland Act 1998 in relation to rights, safeguards and equality of opportunity protections contained in the Belfast (Good Friday) Agreement 1998.

– The Bill includes provision relating to facilitating access for Northern Ireland goods to the market in Great Britain, as well as further provision to ensure no alteration to the arrangements for North South cooperation can occur as a result of this Bill.

The Withdrawal Agreement sets out the exit terms, covering the transition period, the monies to be paid to the EU, citizen rights, the Ireland-Northern Ireland specific arrangements, and other matters.

The Bill gives effect to these exit terms.

The timetabling of UK Parliament debate on this Bill will be voted on this morning.

The government has already signaled that all of this week will be taken up with this Bill, leaving the further debate on the Queen’s Speech and the Environment Bill Second Reading for later dates (unspecified).

Please look out for further Blog posts on this matter.

What’s happening re Brexit (UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

EU-UK Agreement is reached on the Johnson Exit terms (the Withdrawal Agreement agreed last week), but this Agreement must be ratified by both the UK and the EU Parliaments (if you remember ratification of the earlier agreed May Exit terms failed at the UK Parliament step, and the Exit day was extended).

Yesterday, the UK Parliament voted to require completion of the full legislative elements of ratification (passage of an unpublished Withdrawal Agreement Bill) first. Plus (in fulfilment of the EU (Withdrawal) (No. 2) Act 2019 – the Benn Act), the UK applied for the Exit day to be moved to 31st January 2020.

Tomorrow, it may be the Johnson Exit terms will return for UK Parliament vote, but it’s more likely ratification will move straight to the legislative element – the Withdrawal Agreement Bill.

We don’t know exactly what will be in the Withdrawal Agreement Bill (WAB), because it is not published, but many, possibly hundreds, of amendments are likely, at least for debate.

If the WAB is enacted by 31st October, the UK exits with the Johnson Exit terms (see the posts of last week on the (Johnson) revised Ireland-Northern Ireland Protocol, and the (Johnson) revised Political Declaration).

If the WAB is not enacted by 31st October, the Exit day is moved to the 31st January 2020 (if the EU has granted the application), or a different date (if the EU sets a different date and the UK Parliament agrees it).

The UK government has also triggered its Operation Yellowhammer no deal contingency plan.

Please look out for further Blog posts on the matter.

[next week also has the votes scheduled on the Queen’s Speech, and the Environment Bill Second Reading]

What is happening this week (UK Brexit)

Exit day is 31st October (this date is in a Statutory Instrument)

UPDATE : 26 bills

Today, the minority UK government introduces its new legislative programme of 22 Bills, including a Withdrawal Implementation Bill and an Environment Bill. The debate that ensues is likely to vote down this legislative programme, in whole or in part.

At the same time, the minority UK government is negotiating with the EU for an orderly Exit. We will know on Wednesday if an agreement (UK-EU) is possible to be presented at the European Council meeting of EU leaders on Thursday and Friday.

In the event a UK-EU agreement is reached, the next step is ratification in the UK Parliament and the EU Parliament.

The UK Parliament will sit on Saturday 19th, to decide what it will do.

Please look out for further Blog posts on the matter.

Direction of Travel (UK Brexit)

Exit day is 31st October 2019 (this date is set out in a Statutory Instrument)

Today, the UK state issued its text proposal for a new Ireland Protocol (“backstop” in common parlance) to the UK/EU Withdrawal Agreement.

Only the letter and explanatory note are published – here.

The letter shows the direction of travel –

Our proposed compromise removes the so-called “backstop” in the previous Withdrawal Agreement. I have explained the difficulties with this elsewhere, including the fact that it has been rejected three times by the UK Parliament. Equally importantly in this context, the backstop acted as a bridge to a proposed future relationship with the EU in which the UK would be closely integrated with EU customs arrangements and would align with EU law in many areas. That proposed future relationship is not the goal of the current UK Government. The Government intends that the future relationship should be based on a Free Trade Agreement in which the UK takes control of its own regulatory affairs and trade policy. In these circumstances the proposed “backstop” is a bridge to nowhere, and a new way forward must be found.

[my emphasis]

The new proposal would create a complicated situation for traders in Northern Ireland, and for trade into Northern Ireland, plus a consent mechanism necessitating initial and repeated four-yearly approval by Stormont (that is not currently meeting).

The next step is for all parties to review the circulated (but unpublished) detailed text, and for the EU on behalf of the Member States, to indicate if the proposal has merit enough to enter into detailed discussion.

Please look out for further Blog posts.

NB – re Eco-design and Right to Repair – the EU agreed it’s new rules today, it seems in time for the 31st October Exit day – I updated the Blog post issued recently. This matter will be in the October Email Alert to subscribers.

Orderly Exit? (UK Exit)

Exit day is 31st October 2019 (this date is in a Statutory Instrument)

Reports this morning (and last night) identify the UK state will make a new proposal to the EU for an orderly exit (termed “Deal” in common parlance).

In the event that this proposal is accepted, in full or with agreed changes, then an orderly exit would result on Exit day, under the terms of a new UK/EU Withdrawal Agreement (that was ratified by both the UK and the EU Parliaments and all Member States).

If this occurs, then there would be a new Withdrawal and Implementation Bill or Withdrawal Agreement Bill in the UK. In the last round, only a White Paper was published (2018).

This Withdrawal Agreement Bill, if enacted, would change the EU (Withdrawal) Act 2018 and delay the action of the Brexit Law on the UK statute book.

The UK would Exit on Exit day, but the effect of the Brexit Law would be delayed.

Some Brexit Law (amended) would take effect on Exit day, and some Brexit Law (amended) would take effect at the end of 2020.

In some topics, and in some geographical regions, UK and EU Law would remain aligned until the end of 2020 (and in some cases to 2025).

Please expect to see further Blog posts.

Retained EU Law (UK Exit)

Exit day is 31st October (this date is in a Statutory Instrument)

The European Union (Withdrawal) Act 2018 is the governing Law.

Some EU legislation will continue to have effect in the UK legal system post-exit. This is called ‘Retained EU Law’.

EU regulations (not EU directives), certain EU decisions and EU tertiary legislation (now known as delegated and implementing acts), will be retained (converted and incorporated) in the UK legal system as they have effect immediately before Exit day.

EU-derived domestic legislation that reproduces the effect of an EU regulation, decision or tertiary legislation, are not retained. This is to avoid duplication on the statute book after exit.

EU legislation is only converted and incorporated into domestic law “so far as operative immediately before Exit day”.

The default position is that EU legislation is operative if it is in force immediately before Exit day. However, some EU legislation applies in a staggered way over time, and the Act ensures that, so far as a relevant instrument has entered into force and applies before Exit day, it will be converted into domestic legislation.

It is only if the provision is “stated to apply” from a later time, and that time falls on or after Exit day, that the provision would not fall within the ambit of the section. So, where there is a stated date of application, and this date falls after Exit day, the provision is not converted.

This means that, provided it is not expressly stated to apply from a date falling on or after Exit day, EU legislation which is in force before Exit day will be converted even if it has some effect which crystallises after Exit day.

For example the EU fluorinated greenhouse gases regulation [No. 517/2014]. the whole of which is in force and – by virtue of its Article 27 – is stated to apply from 1 January 2015, prohibits the supply of equipment containing certain substances from specified dates, several of which fall after Exit day. These future prohibitions apply now, even though they do not take effect until after Exit day. They are therefore converted under the Act and will take effect on the specified dates.

In the case of EU decisions which specify to whom it is addressed, if the date of notification to the addressee (for example the UK or a person in the UK) falls before Exit day then that decision is converted.

In the case of EU directives – these are not part of EU retained law in any event. EU directives will have dates by which member states should have domestic legislation in place. If these dates are beyond Exit day, then it will be a matter of enforcement of non- implementation by the European Commission (on an action, for example, taken by an aggrieved party).

Exit day changes (update) (UK Brexit)

Exit day is 31st October (this date is in a UK Statutory Instrument that is commenced)

This post updates a post I wrote a few days ago, of similar title.

Today, the House of Lords agreed (without amendment) the Bill – the European Union (Withdrawal) (No. 6) Bill 2019 – brought by persons other than the Government of Johnson-DUP. This Bill now gains Royal Assent by a matter of course.

The Act (therefore duly enacted) will oblige the Prime Minister to seek to extend the Exit day to 31st January 2020 by letter in the form set out in the Schedule (and to accept immediately any EU agreement to extension – and to accept any other EU proposed extension in two days unless the House of Commons rejects it) –

unless by 19th October Parliament consents to Exit without a deal or it agrees to a new deal with the EU.

The Act will also oblige the Government to make regular reports to Parliament on the progress of negotiations with the EU.

The bill was amended in committee in the House of Commons. The amendment added a statement to the bill setting out that the intention of the request for an extension to article 50 would be to pass a withdrawal agreement bill.

This, however, does not create a legal duty to pass a withdrawal agreement bill.

The Johnson-DUP administration already has Crown powers (available to it) to suspend Parliament during dates in September and October. It is expected to suspend Parliament on Monday, after a second request of Opposition Parties to dissolve Parliament so that a General Election may be held. Opposition Parties this morning agreed to oppose the Johnson-DUP administration in this request.

The Prime Minister said today that he would not extend the Exit day. The EU appears to signal that it could regard enactment of the Act as a legal request, even if it’s not made by the Prime Minister.

It is also possible a deal is agreed with the EU that is accepted by Parliament, by the 19th October, but this looks remote.

I will next issue a Blog post on the matter of Exit day changes in mid October, on the assumption that (1) Parliament is not dissolved to hold a General Election, and (2) Parliament is suspended until then.