Clause 5: General implementation of remainder of Withdrawal Agreement
118 This clause gives effect to Article 4 of the Withdrawal Agreement, on the methods and principles relating to the effect, the implementation, and the application of the Withdrawal Agreement.
119 Article 4 of the Withdrawal Agreement provides for:
a. individuals and businesses to be able to rely directly on the terms of the Withdrawal Agreement to bring a claim before UK courts, where certain tests are met;
b. the disapplication of provisions of domestic law which are inconsistent or incompatible with the Withdrawal Agreement; and
c. provisions of the Withdrawal Agreement referring to EU law and its concepts to be interpreted and applied in the UK using the methods and general principles of EU law.
120 Article 4 also states that provisions of the Withdrawal Agreement which are based on EU law must be interpreted in the UK in conformity with CJEU case law handed down before the end of the implementation period, and that the UK’s courts need to have due regard to relevant CJEU case law handed down after this point when interpreting and applying relevant areas of the Withdrawal Agreement.
121 In order to give effect to Article 4, this clause, which will be inserted into the EU (Withdrawal) Act 2018, makes the rights and obligations etc in the Withdrawal Agreement available in domestic law. This clause also provides that domestic legislation must be read, and given effect, in a manner that is compatible with the Withdrawal Agreement.
122 Taken together, subsections (1) and (2) ensure that rights, powers, obligations, remedies etc as they arise or are created from time to time in the Withdrawal Agreement are given legal effect in the UK legal system. This means that they will apply directly without the need for further domestic implementing legislation. This also means that the limited category of dynamic provisions of the Withdrawal Agreement will flow through the ‘conduit pipe’ of this clause into domestic law as they update post-exit.
123 Specifically, subsection (1) provides for rights, powers, liabilities, obligations and restrictions created or arising under the Withdrawal Agreement, and remedies and procedures provided for by the Withdrawal Agreement, to apply directly in domestic law.
124 Subsection (2) makes clear that the rights and obligations etc arising from the Withdrawal Agreement and which will apply directly in the UK by subsection (1) are to be recognised in domestic law and enforced, allowed and followed accordingly.
125 Subsection (3) provides that enactments are to be read and have effect subject to subsection (2). ‘Enactment’ is defined at clause 36 and, for the purposes of the Bill, means ‘an enactment whenever passed or made’ and therefore captures legislation (examples of which are given in clause 40) even if this passed after the Bill is passed. Therefore, the effect of this clause is to ensure that any past or future enactment which does not clearly state otherwise (including any enactment contained within the Bill itself), will take effect subject to 5(2).
126 Subsection (4) makes clear that this clause will not apply in relation to Part 4 of the Withdrawal Agreement, which sets out the agreement on the implementation period, and points to those sections of the Bill which will give effect to that period. This is because the Bill contains separate provision giving effect to the implementation period, which will be repealed at the end of the implementation period.
127 Subsection (5) directs the reader to look also at the specific parts of the Bill which make further provision for giving effect to the Withdrawal Agreement – namely, citizens’ rights, financial provision, the interpretation of law relating to the Agreements etc, certain other separation issues, and the corresponding powers for the devolved administrations. This list is not exhaustive, and the reader should look to all pieces of legislation which may be relevant.
Clause 6: General implementation of related EEA EFTA and Swiss separation agreements
128 This clause concerns the general implementation of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. This clause ensures a consistent approach across these Agreements by following the same approach to implementation to that set out in clause 5.
129 This is done by broadly replicating the approach taken in Article 4 of the Withdrawal Agreement and applying that to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. This is achieved by ensuring that subsections (1) and (2) of clause 6 mirror subsections (1) and (2) of clause 5.
130 Taken together, subsections (1) and (2) ensure that rights, powers, obligations, remedies etc as they arise or are created from time to time in the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement are given legal effect in the UK. This means that they will apply directly without the need for the UK Parliament to pass further domestic implementing legislation. This also means that the limited category of dynamic provisions of these agreements will flow through the ‘conduit pipe’ of this clause into domestic law as they update post-exit. While there is no express requirement in these Agreements to provide for implementation in this manner, this approach ensures consistency across the Agreements and, subject to any differences between the agreements, gives rise to consistent rights and remedies for EEA EFTA and Swiss individuals and firms, and EU individuals and firms. Subsection 3 provides that in the unlikely event of any conflict between the terms of either the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement on the one hand, and the Withdrawal Agreement on the other, the terms of the latter shall take precedence.
131 Specifically, subsection (1) provides for rights, powers, liabilities, obligations and restrictions remedies or procedures that would from time to time be created or arise, or be provided for, by or under the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement, and which would, in accordance with Article 4(1) of the Withdrawal Agreement be required to be given legal effect or used in the UK without need for further enactment, to apply in the UK as if Article 4.1 of the Withdrawal Agreement applied to them and those agreements were part of EU law and the relevant EEA States and Switzerland were Member States.
132 Subsection (2) makes clear that the rights and obligations etc arising from the Agreements, and which will apply directly in the UK by virtue of subsection (1) are to be recognised in domestic law and enforced, allowed and followed accordingly.
133 Subsection (3) provides that enactments are to be read and have effect subject to subsection (2). ‘Enactment’ is currently defined at clause 37 and, for the purposes of the Bill, means ‘an enactment whenever passed or made’ and therefore captures legislation (examples of which are given in clause 37) even if passed after the Bill. Thus the effect of this clause is to ensure that any past or future enactment (except for the new section 7A of the EU (Withdrawal) Act 2018 but otherwise including an enactment contained within that Act) will take effect subject to subsection(2).
134 Subsection (4) of new section 7B directs the reader to look also at the specific parts of the Bill which give specific further legislative effect to other relevant parts of the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreements also covered by clause 6 – namely, citizens’ rights, interpretation of law relating to the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement, power in connection with certain EU and EEA separation issues, and powers involving the devolved authorities in connection with certain EU and EEA separation issues. This list is not definitive, and the reader should look to all pieces of legislation which may be relevant, when seeking to clarify what clause 6 applies to.
135 Subsection (5) defines ‘the relevant EEA states’ as Norway, Iceland and Liechtenstein.
136 Subsection (6) provides definitions for the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.
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