Withdrawal Agreement Bill (UK Brexit)

Exit day is 31st January (next Friday)

The Withdrawal Agreement Bill is now enacted as the European Union (Withdrawal Agreement) Act 2020 (the UK 2020 Act). It amends the European Union (Withdrawal) Act 2018, and will be added to the Brexit Law List, in the EHS Legislation Registers & Checklists of subscribers systems.

The Bill was enacted unaltered. I already Blog posted about the Bill contents before Christmas. The Bill Explanatory Notes are here.

In brief :

(1) The EU-UK Withdrawal Treaty is now ratified on the UK side.

(2) The EU-UK Withdrawal Treaty is here (ratification is proceeding on the EU side).

(3) The UK must set up an Independent Monitoring Authority to oversee the citizen rights elements of the Withdrawal Treaty.

(4) Both sides must set up the Joint Committee, and its sub-committees, to manage implementation of the Withdrawal Treaty.

(5) A transition period will commence from 1st February and last until 31st December 2020 (the UK 2020 Act terms this an Implementation Period).

(6) The Withdrawal Treaty provides for a single extension of the transition period for up to one or two years, the final date for application for this is end June.

The UK 2020 Act prevents the application. So for an application to be made, a further Act would need to be enacted on this point.

(7) The Northern Ireland/Ireland Protocol to the Withdrawal Treaty commences at the end of the transition period. I blog posted already about this Protocol. The UK 2020 Act stipulates the Protocol will be enacted by Regulations made under the UK 2020 Act.

(8) During the transition period, nothing substantive changes for business or citizens, and the Brexit Law statutory instrument changes to UK domestic law are delayed until 1st Jan 2021.

Hence, subscribers existing EHS Legislation & Registers are relabelled Brexit Transition.

(9) From 1st Feb, the UK is free to make trade deals, these trade deals could alter domestic law.

(10) From 1st Jan 2021, the Brexit Law statutory instrument changes to UK domestic law have legal effect. These freeze UK domestic law implementation of EU law as at 31st Dec 2020. In practice, however, the vast bulk of the UK Brexit Law was enacted in March/April 2019, and so unless reissued, it reflects EU law at that date.

Some EU law will need implementing in 2020.

I wrote separate Blog posts about EU Law in UK 2020 and EU Law in UK 2021.

During 2020, please expect to see further Blog posts on this topic.

Withdrawal Agreement Bill (WAB) (UK Brexit)

Exit day is 31st January 2020

The updated Withdrawal Agreement Bill (WAB) is now published – here.

The Explanatory Notes for the updated WAB are here.

Two clauses giving a role for Parliament, including relating to negotiating objectives for the next phase, are removed, these were Clauses 30 and 31.

Clause 34 and Schedule 4 on workers’ rights are also gone. Explanatory notes to the Queen’s Speech identify the government will bring forward an Employment Bill in this legislative period 2019-2020 (this Blog does not focus on employment law, save for health and safety aspects).

Among the 5 new clauses:

Clause 30 on Withdrawal Treaty Joint Committee dispute resolution reporting

Clause 33 banning Ministers from agreeing to an extension to the transition period (termed implementation period in the bill)

Clause 35 banning the use of written procedure in the Withdrawal Treaty Joint Committee

Clause 36 repealing spent enactments

Re: the briefed stories about letting lower courts depart from CJEU judgments, rather than just the Supreme Court and High Court of Justiciary – this seems to be catered for by a new subsection in clause 26(1) that gives Ministers a power to decide when lower courts can do this.

Another change is in clause 20. In October the WAB had what’s called a standing service provision, which authorises expenditure to the EU for sums owed under the WA treaty. It was time limited last time (to March 2021) but a Minister could extend it. No more can it be extended.

Last time the Bill only had provisions about House of Commons scrutiny of developments in EU law during the transition period (the European Scrutiny Committee could force debates in the Commons). It seems there is now the same role in the Lords for its EU Committee in clause 29. During the transition period, the Bill incorporates developments in EU law into UK Law and stays (delays) the effect of Brexit Law changing the UK statute base so it can stand alone.

It also seems like Schedule 2 has been amended a bit. It now looks like the Independent Monitoring Authority can delegate decisions about starting inquiries and legal proceedings (where it couldn’t before) and that its functions can be transferred more easily than before.

There may be other changes that are identified or that are accepted as the Bill is scrutinised.

The Second Reading is scheduled for tomorrow, which will be easily carried. The Bill will then go forward for scrutiny in the usual fashion once Parliament returns from its holidays.

Parliament will take its Christmas holidays at the end of tomorrow, to return again on 6th January.

The WAB will amend the EU (Withdrawal) Act 2018. In addition to bringing in the transition period to 31st December 2020 (known as the Implementation Period completion day) the fact of enactment of the WAB, will delay the deadline for application to the EU Settled Status Scheme to June 2021.

If there are further substantive changes to the WAB, I will post again, otherwise not.

Queens Speech (UK)

Exit day is 31st January 2020 – DExEU government department will close on that day

Of relevance (for this Blog) in the Queen’s Speech today are :

(1) the Environment Bill – this will be brought back with alterations

(2) a new Fire safety and Building safety bill or bills

(3) the withdrawal agreement bill and associated Brexit bills

Please look out for further Blog posts when the bill text is published.

Withdrawal Agreement Bill (WAB) (UK Brexit)

Exit day is 31st January 2020.

Implementation Period (IP) completion day is 31st December 2020 (this is the date of the end of the Withdrawal Treaty Transition Period).

The Queen’s Speech is tomorrow (Thursday), and I will post specifically on that, once the bills for the new legislative period are identified. Some bills will be of relevance, not least the Environment Bill.

The UK government has signalled it will bring back the WAB in an updated form on Friday, so that it can be enacted by the Exit day.

The EU (Withdrawal Agreement) Bill – the WAB – amends the EU (Withdrawal) Act 2018 to give effect to the UK-EU Withdrawal Treaty (Oct 2019 revision). It sets out provisions for an orderly exit, and includes a Transition Period – identified as an Implementation Period (IP) in UK Legislation.

The updated text is not yet published. I will post again on the WAB when the updated text is available.

The UK government has signalled it will insert provision for the Lower Courts to overturn decisions of the European Courts. This will affect the definition of waste, among other matters.

There may be other WAB updates of relevance also. Once I see the updated WAB text, I will include a list of the relevant changes in the Blog post.

Please look out for further Blog posts on the WAB.

Environment Bill (published) – Part 5 (England & UK part)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

I posted three Blog posts so far about the first thematic half – one on UK REACH, one on Parts 1&2, and one on the OEP.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

SPECIFIC IMPROVEMENT of the ENVIRONMENT

Part 5 – Water – includes –

– improving water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;

[in the context of water scarcity in certain locations, although not specifically mentioned, we may need to see the construction of further reservoirs]

– placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;

– modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment;

– enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so;

enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, when there are no longer powers under section 2(2) of the European Communities Act 1972.

Clause 79 sets out these powers. Note the consent requirements re the devolved administrations –

– Clause 79 Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in clauses 80 and 81 respectively with their consent.

– Clause 79 Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.

– Clause 79 Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Subsection (6)(b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Subsection (5)(c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.

Note –

– Clause 80 confers a regulation, broadly comparable to that in clause 79, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.

– Clause 81 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.

—————

As a Bill, this document would need to pass both Houses of Parliament to enter the statute books. You note, I pegged this as England.

However, some Clauses are intended to have effect outside England – see page 194 of the Explanatory Memorandum which has a table. And see earlier re environmental quality standards and substance lists.

If the Bill enters the statute books, the provisions then need to be commenced, some may be commenced immediately, such as those that are needed directly for EU Exit, but there could be a substantive delay in the commencement of other Part, such as Part 5.

I will issue further Blog posts, please look out for them.

Exit day (EU & UK Brexit)

Exit day is 31st January 2020 (a Statutory Instrument will be issued shortly)

The Exit day has been put back, and the UK government will today seek approval to hold a general election in December.

There are further steps after the expected election approval later today, notably re Northern Ireland (where the government there did not meet the deadline to resume operation) and then five weeks of the campaign.

There are further steps after the election date – the swearing in of the MPs, election of the Speaker, Queens Speech etc.

It is expected UK Law making will resume at the start of January 2020.

The Environment Bill passed its Second Reading last night, and its associated timetable and ways and means motions also passed.

The Withdrawal Agreement Bill passed its Second Reading some days ago, but its associated timetable motion was not agreed.

The Budget will be held over until the New Year.

Please look out for further Blog posts.

Environment Bill (published) Parts 1&2 (UK Brexit)

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

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

Part 1 – the Environmental Governance Part of the Environment Bill – includes –

– allowing the government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;

– requiring the government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;

– requiring the government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;

– requiring the government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);

– requiring the government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England;

– establishing the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;

– requiring the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;

– requiring the government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;

– requiring the government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;

– requiring the government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;

– requiring the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;

creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;

– defining the scrutiny, complaints and enforcement functions of the OEP and their scope;

– establishing an OEP enforcement process of environmental review in the Upper Tribunal; and

– defining the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

Part 2 – the Environmental Governance: Northern Ireland Part of the Environment Bill – includes –

– extending the application of the OEP to Northern Ireland, and making separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

Delegated Powers Statement is here. [Environment is a delegated responsibility in the UK]

The delegated powers in the Bill fall into five thematic categories.

(1) there are powers that are needed as a result of the UK leaving the EU;

(2) there are provisions which modify, or are based upon, existing delegated powers;

(3) there are provisions which create new delegated powers to give effect to new environmental policy;

(4) there are powers for devolved administration ministers to make equivalent provision to UK Ministers;

(5) there are general provisions which are required for the Bill to have effect.

Provisions falling into the first category are intended to avoid a governance gap and to ensure the government can deliver on its environmental ambition when the UK leaves the EU.

All of the powers in Parts 1 and 2, plus six other powers fall into this category, as below:

– Existing environmental targets are largely derived from EU law and when the UK leaves the EU it may wish to set its own targets that differ and go beyond those of the EU that will have been retained for the time being in domestic law.

– Clauses 1 and 2 provide for regulations to set targets for matters relating to improving the natural environment or people’s enjoyment of it, and an air quality target in respect of the pollutant fine particulate matter (“PM2.5”).

– Environmental principles are reflected in various international instruments and are set out in the EU treaties. However, a clear articulation of these principles has never been laid out clearly at a national level. The Environment Bill will change this through requiring the publication of a statutory policy statement (clause 16) on the interpretation and proportionate application of the principles, to which Ministers will have a duty to have due regard when making policy. (This is not a delegated legislative power but it is included in Annex A. Northern Ireland has the same power in paragraph 6 of Schedule 2.)

– Clause 40(5) would allow the Secretary of State to set out in secondary legislation which legislative provisions come within the definition of “environmental law”, if required, in order to ensure that there is clarity about the scope of that definition (which in turn will define the scope of the OEP’s enforcement function). Northern Ireland would have the same power in paragraph 18(6) of Schedule 3. The aim of this power is to provide certainty to the OEP, public authorities and the public about the OEP’s remit, in the unlikely case that uncertainty cannot be resolved by other means.

– A number of regulation-making powers (clauses 56, 58, 79-81, 122 and Schedule 20) allow Ministers to make changes in relation to regulations made under section 2(2) European Communities Act 1972. This will, for example, ensure that the lists of priority substances for surface waters and groundwater and their environmental quality standards do not remain fixed and therefore potentially out of date or unsuitable for domestic conditions after the UK has withdrawn from the EU. Tying the UK’s standards to those set historically in the EU could increase risks to the water environment. A further example is a power that would ensure the regulation of international waste shipments can respond to the changes in the methods and practices of those engaged in illegal waste shipment activity.

Further Blog posts will cover the other parts of this important Bill.