Brexit Day
Brexit day is defined as 11.00pm on 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020). This is in line with the calculation of time in EU law, as well as the EU’s negotiating directives, which indicate that the UK will leave the EU at 00.00 on 30 March Brussels time, corresponding to 11.00pm on 29 March UK time.
If the date and time at which the EU Treaties cease to apply to the UK is not the date and time specified, a minister may make regulations to amend the definition of exit day in this Act to ensure that they are aligned. A change in the date is possible under Article 50(3) of the TEU. Regulations made under would be subject to the affirmative procedure
Implementing the withdrawal agreement
The Withdrawal Act gives ministers of the Crown a power to make secondary legislation to implement the withdrawal agreement agreed between the UK and the EU. It provides ministers with the power to make legislative changes which they consider appropriate for the purposes of implementing the withdrawal agreement.
Regulations made using this power are restricted to implementing only those measures that should be in place for exit day and this power is not intended to be used for post-exit modifications. The use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.
The secondary legislation made under the power is capable of doing anything an Act of Parliament can do, subject to the following restrictions. There are a series of restrictions on the power stating what it cannot do. The power cannot be used to impose or increase taxation, make retrospective provision, create a relevant criminal offence, establish a public authority or amend, repeal or revoke the Human Rights Act 1998 (nor legislation made under it).
The power expires on exit day meaning that no regulations can be made after this time. It is the power and not the regulations made under it which expires. There are scrutiny procedures for this power.
Northern Ireland
The Withdrawal Act requires ministers and any devolved authority, when exercising any of the powers in the Act, to act compatibly with the Northern Ireland Act 1998 and have due regard to the joint report of 8 December 2017 from the negotiators of the EU and the UK on progress during phase 1 of negotiations under Article 50 of the Treaty on EU.
The section also prevents various powers in the Act from being used to diminish any form of North-South cooperation (as provided for by the Belfast Agreement) or which would introduce any border arrangements (including physical infrastructure or checks and controls) on the land border between the United Kingdom and the Republic of Ireland, where such arrangements did not exist before exit day and are not in accordance with an agreement between the UK and the EU.
Maintenance of environmental principles etc.
Six months after Royal Assent of the Withdrawal Act this Act, the Secretary of State must publish draft legislation which sets out a list of environmental principles). The draft legislation must place a duty on the Secretary of State to publish a policy statement in relation to the application and interpretation of those principles which, when circumstances to be set out under the legislation apply, ministers of the Crown must have regard to in making and developing policy.
The draft legislation must also define environmental law and make provision for the establishment of a public authority with functions for taking proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a minister of the
Family unity for those seeking asylum or other protection in Europe
The Withdrawal Act makes it an objective of the UK Government to seek to negotiate an agreement with the EU under which, subject to the terms of the agreement, unaccompanied asylum-seeking children in the EU will be able to join parents, grandparents, siblings, spouses and aunts and uncles lawfully resident in the UK, and vice versa. his does not in itself confer leave to enter or remain in the UK.
Customs arrangement as part of the framework for the future relationship
The Withdrawal Act requires a minister of the Crown to lay before each House of Parliament a written statement outlining the steps taken by the Government, in the negotiations to withdraw from the EU, to seek to negotiate an agreement to participate in a customs arrangement as part of the framework for the UK’s future relationship with the EU.
The statement must be laid before both Houses of Parliament before the end of 31 October 2018.
Devolved Authorities Implementing the withdrawal agreement
The Withdrawal Act provides powers for devolved authorities to implement the withdrawal agreement. The power to implement the withdrawal agreement can be used by devolved authorities, or by ministers of the Crown and devolved authorities acting jointly. It sets out that the same restrictions on UK ministers’ power other than the requirement for the prior enactment of primary legislation in order to use the power, also apply to devolved authorities’ power under this Part, along with an additional restriction preventing the power from modifying secondary legislation made under the Act (except where that legislation was made by the devolved authority or the power is being exercised jointly with a minister of the Crown).
The power to implement the withdrawal agreement cannot be used outside of devolved competence, where exercised by devolved authorities acting alone. There is no power to modify retained direct EU legislation etc.
Where a devolved authority would normally only be able to make a particular provision in legislation with the UK Government’s consent, after consulting with the UK Government or jointly with the UK Government, the devolved authority will still have to obtain consent, consult or make such legislation jointly (as applicable) when exercising the withdrawal agreement power to make such a provision.
The Withdrawal Act makes changes to devolved executive competence, which correspond to the changes made to legislative competence by the UK parliament.
Consequential and transitional provisions
The Withdrawal Act provides that a minister of the Crown to make regulations which are appropriate as a consequence of the Act. Consequential provision might include modifying (such as amending, repealing or revoking) both primary and secondary legislation.
Ministers cannot make consequential provision which amends Acts (or secondary legislation made under those Acts) passed after the end of the parliamentary session in which this Act is passed. This temporary power can only be used for up to ten years after exit day as it expires at that point.
This Article draws on UK Parliamentary material. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).
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