Clause 1: Saving for the implementation period
85 This clause inserts a new section 1A into the EU (Withdrawal) Act 2018. New section 1A saves and amends the ECA for the purpose of giving effect to Part 4 of the Withdrawal Agreement. Until ‘exit day’, the ECA’s purpose is to implement EU law as required by the UK’s membership of the EU; during the implementation period, by contrast, the modified and repurposed 1972 Act will implement EU law as set out in the Withdrawal Agreement.
86 Subsection (1) makes clear that the provisions in the following subsections (2) to (4) will have effect despite the repeal of the ECA on ‘exit day’.
87 Subsection (2) provides for the ECA to continue to have effect in domestic law, subject to the modifications repurposing that Act so that it works to give effect to the implementation period at subsections (3) to (5). To the extent the ECA currently has any effect in the law of a relevant territory – the Isle of Man, any of the Channel Islands or Gibraltar – it will continue to have the same effect for the purposes of the implementation period.
88 Subsection (3) modifies the saved ECA, so as to ensure that it gives effect to EU law in the UK for the purposes of the implementation period at Part 4 of the Withdrawal Agreement. Specifically:
a. (3)(a)(i) adds Part 4 of the Withdrawal Agreement, except those provisions that relate to the Common Foreign and Security Policy, to the definition of ‘the Treaties’ and ‘the EU Treaties’ in section 1(2) of the ECA. This means that international agreements concluded by the EU and which enter into force during the implementation period will be given effect to via Part 4 of the Withdrawal Agreement.
b. (3)(a)(ii) takes a snapshot of what falls within the definition of ‘the Treaties’ and ‘the EU Treaties’ on exit day. Article 129(4) of the Withdrawal Agreement states that ‘the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union’. 3(a)(ii) also provides a power to Ministers to exclude an international agreement from the definition of Treaties/ EU Treaties where appropriate, to cater for the eventuality where the UK negotiates, signs and ratifies an international agreement during the implementation period in an area of EU exclusive competence, the EU authorises the UK to bring it into force or for it to apply during the implementation period, and, in order to do so, the UK needs to remove an existing EU-third country international agreement given effect to via the ECA, and which conflicts with this new international agreement, from the definition of ‘the Treaties’.
c. (3)(b) amends section 2(2) of the ECA so that the reference in that section to the ‘objects of the EU’ becomes a reference to those objects so far as they are applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement. This modifies section 2(2) of the ECA so that it functions to give effect to the UK’s EU obligations as per Part 4 of the Withdrawal Agreement on the implementation period.
d. 3(c) removes section 2(3) of the ECA, which concerns the payment of EU costs, from that Act. This is because the Bill will set up a different mechanism for the UK to make financial payments to the EU.
e. 3(d) modifies section 3(1) of the ECA, so that in legal proceedings questions regarding the meaning or effect of the Withdrawal Agreement during the implementation period shall be treated as a question of law. Such questions are to be determined by the domestic court, in accordance with relevant decisions of the CJEU in line with Part 4 of the Withdrawal Agreement.
f. 3(e) specifically modifies sections 5 and 6 of the ECA (concerning customs duties and the Common Agricultural Policy (CAP)) to make sure that they continue to operate properly during the implementation period and to avoid any suggestion that the Bill merely preserves CAP arrangements and customs duties etc as they had effect at the moment of withdrawal.
g. (3)(f) modifies Part 2 of Schedule 1 of the ECA:
i. (i) modifies the definition of ‘EU customs duty’ so that any reference to such provision is a reference to it so far as it is applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement during the implementation period;
ii. (ii) modifies the definition of ‘Member State’ that will apply in domestic law during the implementation period.
89 Subsection (4) provides a definition for ‘relevant territory’ being any territory to which the ECA has applied in any limited capacity previously. Specifically, the term includes the Isle of Man, any of the Channel Islands or Gibraltar.
90 Subsection (5) will repeal subsections (1) to (4) at the end of the implementation period, referred to as ‘IP completion day’ in the Bill. This will be at the point the implementation period ends i.e. 11.00pm on 31 December 2020, or a maximum of two years after this, as specified in the Withdrawal Agreement and subject to Parliamentary approval, as in clause 30.
91 Subsection (6) clarifies the meaning of various terms referenced in this section, specifically:
a. ‘implementation period’ – implementation or transition period, as provided for by Part 4 of the Withdrawal Agreement and beginning with ‘exit day’ and ending on IP completion day;
b. ‘IP completion day’ – as defined in clause 37(1) of the Bill, is 31 December 2020 at 11.00pm, unless amended by regulations under clause 37(4) of the Bill to ensure that it is the date and time at which the implementation period ends under the Withdrawal Agreement or to take account of any changes to EU summertime arrangements; and
c. ‘Withdrawal Agreement’ – as defined in clause 37(1) of the Bill, is the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on the European Union which sets out arrangements for the United Kingdom’s withdrawal from the EU.
92 Subsection (7) clarifies that:
a. references to the ECA are to be read as being or as including references to the repurposed and saved version of that Act so far as the context permits or requires; and
b. references to any part of the Withdrawal Agreement or of the EEA EFTA Separation Agreement also include references to a different part of that agreement so far as they are relevant. Provisions in other parts of the Withdrawal Agreement will, therefore, be caught by the term ‘Part 4 of the Withdrawal Agreement’, where those provisions are relevant to Part 4, for example the definitions in Article 2 of the Withdrawal Agreement.
Clause 2: Additional saving for the implementation period
93 This clause inserts a new section 1B into the EU (Withdrawal) Act 2018. Section 1B saves existing EU-derived domestic legislation and ensures that EU-related references continue to operate properly during the implementation period.
94 Subsection (1) makes clear that subsections (2) to (5) have effect despite the repeal of the ECA on exit day.
95 Subsection (2) makes clear that EU-derived domestic legislation continues to have effect in domestic law on and after exit day, as it had effect in domestic law immediately before exit day. EU-derived domestic legislation is defined in subsection (7). EU-derived domestic legislation is saved to avoid the risk of legislation lapsing, or being impliedly repealed or emptied of meaning, given that the UK will no longer be a Member State of the EU and the ECA will have been repealed by section 1 of the EU (Withdrawal) Act 2018.
96 Specifically, so far as the context permits or requires, subsection:
a. (3)(a) makes it clear that references to the definitions listed in Part 2 of Schedule 1 of the ECA that appear in Schedule 1 of the Interpretation Act 1978 or elsewhere, have effect in EU-derived domestic legislation as they have been modified by sections 1A(2) to (4) of the EU (Withdrawal) Act 2018. For instance, the modified definition of ‘Member State’ in new section 1A(3)(f)(ii) is reflected in the definitions contained in Schedule 1 to the Interpretation Act 1978. Because the definitions in the 1978 Act apply across the statute book, new section 1B(3)(a) makes clear that references to ‘Member State’ in EU-derived legislation should pick up on the new modified definition in the ECA.
b. (3)(b)(i) provides for references to cases, general EU law principles and the term ‘EU law’ itself (among other things) to be read as they apply in the UK by virtue of Part 4 of the Withdrawal Agreement.
c. (3)(b)(ii) ensures that any reference to an EU Treaty or part of an EU Treaty, for instance provisions of the Treaty on the Functioning of the European Union or the Treaty on European Union, remain relevant insofar as those provisions continue to apply in the UK by virtue of Part 4 of the Withdrawal Agreement.
d. (3)(b)(iii) provides for references to EU measures in domestic legislation to be references to the EU instrument read in light of Part 4 of the Withdrawal Agreement.
e. (3)(b)(iv) provides that any part of EU law not caught by (3)(a)(ii) and (iii) will also be read in light of Part 4 of the Withdrawal Agreement.
f. (3)(b)(v) provides for references to any tax, duty, levy or interests of the EU to be read as continuing to apply to the UK, where applicable under Part 4 of the Withdrawal Agreement.
g. (3)(b)(vi) provides for any arrangement involving or relating to the EU not covered by existing provisions in 3(a) should be read as a reference to that arrangement provided that the arrangement is applicable to and in the UK by virtue of Part 4 of the Withdrawal Agreement.
h. (3)(c) provides that any reference to the ECA, subject to subsection 1B(3)(a), is to the saved and repurposed ECA as a result of the modifications made at 1A(2) to (4) of this Act.
i. (3)(d) makes sure that any reference to the EU or EEA territory includes the UK.
j. (3)(e) provides for references to citizens of the EU or nationals of the EEA across the UK statute book to include UK nationals, as defined in Article 2 of the Withdrawal Agreement.
k. Finally, (3)(f) provides two further glossing mechanisms:
i. first, (3)(f)(i) enables further glosses to be added by regulations made under powers located elsewhere in the EU (Withdrawal) Act 2018: in sections 8A and Part 1A of Schedule 2;
ii. second, (3)(f)(ii) directs a court or any other reader of the law to interpret EU-derived legislation, which is not the subject of a specific gloss but is capable of being ascertained from Part 4 of the Withdrawal Agreement, in line with that Part of the Agreement.
97 Subsection (4) applies the glosses in subsection (3), to any new EU-derived domestic legislation that is made or passed during the implementation period for the purposes of implementing ongoing EU obligations or otherwise relates to the EU or EEA law. It also disapplies these subsections from applying to legislation made during the implementation period which is subject to contrary intent, such as where legislation is made during the implementation period for a purpose to which the glosses should not apply.
98 Subsection (5) makes both the saving of EU-derived domestic legislation and its modification by the glosses subject to regulations made under the Bill and under the EU (Withdrawal) Act 2018, specifically regulations made under new section 8A, section 23 or Part 1A of Schedule 2. Regulations will therefore be able to make exceptions to the glosses in particular cases where applying the glosses would not produce the correct result.
99 Subsection (6) repeals subsections (1) to (5) on IP completion day.
100 Subsection (7) defines ‘EU-derived domestic legislation’. It essentially mirrors the definition in section 2 of the EU (Withdrawal) Act 2018:
a. paragraph (a) relates to secondary legislation made under the dedicated power in section 2(2) of the ECA to implement the UK’s obligations under EU law, including under paragraph 1A of Schedule 2 ECA (this allows for ambulatory cross‐references to ‘EU instruments’);
b. paragraph (b) is designed to cover legislation which, while not made under section 2(2) of the ECA, was either specifically passed (e.g. by an Act of Parliament) or made under other secondary legislation making powers for the purpose of implementing EU obligations;
c. paragraph (c) covers enactments which are connected to, but do not fall within, the definitions of domestic legislation preserved by subsection (7)(a) or (7)(b) or converted EU law. It is designed to ensure that provisions which are tied in some way to EU law, or to domestic law which implements EU law, can continue to operate properly post exit; and
d. paragraph (d) is a residual category designed to cover provisions which relate in some other way to the EU or EEA. For example, if an Act of Parliament included a cross‐ reference to a definition contained in an EU instrument or simply contained references which are EU related, those provisions would fall within the definition and would be EU-derived domestic legislation.
101 The definition of ‘EU-derived domestic legislation’ excludes any provision of the ECA, the EU (Withdrawal) Act 2018, this Bill and any provisions in regulations made under either the 2018 Act or this Bill.
102 The glosses set out in this clause will impact the devolution statutes for each devolved administration, providing for the current EU law limit on devolved competence to be modified for the duration of the implementation period. The devolution statutes limit the devolved institutions’ competence by reference to EU law. The definition of EU law is, for these purposes, tied to the ECA – it means the rights, obligations etc arising under the ‘EU Treaties’ as defined in the ECA. This Bill preserves the effect of the ECA for the purposes of the implementation period, and modifies the definition of ‘EU Treaties’ to include Part 4 of the Withdrawal Agreement. As a result, the devolved administrations will not be able to act incompatibly with Part 4 of Withdrawal Agreement, and the restrictions of devolved competence are maintained for the duration of the implementation period.
Clause 3: Supplementary power in connection with implementation period
103 This clause provides Ministers of the Crown with a supplementary power in connection with the implementation period. This power is inserted into the EU (Withdrawal) Act 2018 as new section 8A.
104 New section 8A(1) contains a power for a Minister of the Crown to make the following provision by regulations in connection with the implementation period:
a. to specify additional glosses for EU-related terms in EU-derived domestic legislation so that the statute book continues to function during the implementation period;
b. to disapply:
i. the glosses in new section 1B(3) which apply to EU-derived domestic legislation saved on exit day, so that EU-related terms can be read without the glosses;
ii. the application of the glosses by new section 1B(4) to EU-derived domestic legislation passed or made between exit day and IP completion day, so that EU-related terms in such legislation can be read without the gloss;
c. to make different provision from new section 1B(3) or (4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;
d. to amend or repeal provisions in the EU (Withdrawal) Act 2018 in consequence of the automatic repeals by new sections 1A(5) and 1B(6) of the main provisions in the EU (Withdrawal) Act 2018 that implement the implementation period. Such amendments to the Act might be necessary in the interests of clarity and certainty. The Act will have been substantially amended to provide for the implementation period. At the end of that period, many of these modifications will no longer be applicable and therefore should be removed in order for the law to function clearly; and
e. to make provision, not covered by paragraphs (a) to (d) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. For example, there may be legislative references to the UK’s membership of or participation in EU bodies that are no longer meaningful during the implementation period and so should be removed.
105 Subsection (2) provides that supplementary provision made under this power might include modifying (such as amending, repealing or revoking) both primary and secondary legislation. The power may not be used to do all the things that an Act of Parliament can do.
106 Subsection (3) clarifies that the supplementary power may not be used to modify primary legislation passed or made after IP completion day (or subordinate legislation made under that primary legislation).
107 Subsection (4) sunsets the power so that no regulations may be made under this section after the end of the period of two years beginning with IP completion day.
Clause 4: Powers corresponding to section 3 involving devolved authorities
108 This clause inserts a new Part 1A, Supplementary powers in connection with implementation period, into Schedule 2 to the EU (Withdrawal) Act 2018. That Schedule confers on devolved authorities certain powers corresponding to powers conferred on a Minister of the Crown by the 2018 Act.
109 New paragraph 11A(1) of Schedule 2 to the EU (Withdrawal) Act contains a power for a devolved authority to make the following provision by regulations in connection with the implementation period:
a. to specify additional glosses for EU-related terms in EU-derived domestic legislation so that the statute book continues to function during the implementation period;
b. to disapply:
i. the glosses in new section 1B(3) which apply to EU-derived domestic legislation saved on exit day, so that EU-related terms can be read without the glosses;
ii. the application of the glosses by new section 1B(4) to EU-derived domestic legislation passed or made between exit day and IP completion day, so that EU-related terms can be read without the gloss;
c. to make different provision from new section 1B(3) to (4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;
d. to make provision, not covered by paragraphs (a) to (c) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. For example, there may be legislative references to the UK’s membership of or participation in EU bodies that are no longer meaningful during the implementation period and which should be removed.
110 New paragraph 11A(2) provides that a Minister of the Crown acting jointly with a devolved authority may by regulations make the following provision in connection with the implementation period:
a. to specify additional glosses for EU-related terms in EU-derived domestic legislation so that the statute book continues to function during the implementation period;
b. to disapply:
i. the glosses in new section 1B(3) which apply to EU-derived domestic legislation saved on exit day, so that EU-related terms can be read without the glosses;
ii. the application of the glosses by new section 1B(4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;
c. to make different provision from new section 1B(3) to (4), so that specific provision can be made for particular EU-related terms, so as to enable the statute book to continue to work effectively during the implementation period. This means a different approach to the general gloss can be taken in order to suit specific circumstances;
d. to make provision, not covered by paragraphs (a) to (c) above, but which is appropriate for the purposes of, or otherwise in connection with, Part 4 of the Withdrawal Agreement. For example, there may be legislative references to the UK’s membership of or participation in EU bodies that are no longer meaningful during the implementation period and which should be removed.
111 New paragraph 11A(3) provides that supplementary provision made under these powers might include modifying (such as amending, repealing or revoking) both primary and secondary legislation. The power may not be used to do all the things that an Act of Parliament can do.
112 New paragraph 11A(4) clarifies that the supplementary power may not be used to modify primary legislation passed or made after IP completion day (or subordinate legislation made under that primary legislation).
113 New paragraph 11A(5) sunsets the power so that no regulations may be made under this section after the end of the period of two years beginning with IP completion day.
114 New paragraph 11A(6) provides that regulations made by the devolved authorities acting alone under the power in paragraph 11A(1) are subject to the provisions of paragraphs 11B and 11C below.
No power to make provision outside devolved competence
115 New paragraph 11B provides that a devolved authority acting alone cannot exercise the power to make supplementary provision for the implementation period unless the provision is within devolved competence, as defined in paragraphs 11D to 11F.
Certain requirements for consent, joint exercise or consultation
116 New paragraph 11C provides that any requirements for consent, joint exercise or consultation with the UK Government will apply where the type of provision made by a devolved authority acting alone under this power would, if made under other powers, require UK Government consent, consultation or joint exercise of powers, as provided for in paragraphs 5 to 7 of Part 1 of Schedule 2 of the EU (Withdrawal) Act 2018.
Meaning of devolved competence: Part 1A
117 Paragraphs 11D, 11E and 11F define devolved competence in relation to the exercise of the power to make supplementary provision in connection with the implementation period.
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