EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

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.

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).

F-gases and ODS (UK Brexit)

Exit day is 31st October.

HMG has today updated its instructions for those persons who use or trade in F-gases or ODS.

Here.

Brexit Law is issued in this area, and Cardinal has already consolidated this into base law and supplied it to subscribers to Cardinal Environment EHS Legislation Registers & Checklists.

Brexit Law List (UK Brexit)

Civil servants across the UK Government have now laid all the Statutory Instruments (SIs) necessary under the EU Withdrawal Act.

Over 10,000 new pages of legislation are created.

We are updating the Brexit Law List as these are available in the public domain. It is a relief to know that the production of new instruments has now finished, and we await enactment of all instruments.

As I said in a Blog post yesterday or the day before, we will commence processing these Brexit Laws shortly into the EHS Legislation supplies in the Registers and Checklists, and before 12th April.

Given the size of the task, we expect this job to take at least 2019.

Please keep following the Blog posts for information. I have created a new Blog Category in the Archive – UK Law Deficiency Correction Process.