03 September 2018
On 24 July the UK Government published its White Paper on Legislating for the Withdrawal Agreement between the UK and the EU.
The Withdrawal Agreement will set out the terms of the UK’s exit from the EU, if both parties reach a formal agreement before exit day on 29 March 2019. The UK Government will bring forward the European Union (Withdrawal Agreement) Bill (‘the Bill’) to implement the final deal in domestic law before exit day on 29 March 2019.
The final content of the Bill will depend on the outcome of the negotiations but the UK Government’s White Paper sets out its early expectations for the Bill. It focuses on three aspects of the Draft Withdrawal Agreement which were agreed at the European Council meeting on 19 March 2018: citizens’ rights, the implementation period and the negotiated financial settlement.
The UK and the EU reached agreement on the rights of citizens in December 2017. The White Paper sets out the legislation required to implement the agreement on citizens’ rights in domestic law.
The Draft Withdrawal Agreement provides that all UK nationals lawfully living in a Member State by the end of the transition period (31 December 2020) will be able to stay, as will all EU citizens lawfully living in the UK. The White Paper states that the Bill will ensure that the rights of EU citizens lawfully living in the UK are protected. It will then be up to individual EU Member States to implement similar arrangements to protect the rights of UK citizens currently living in the EU.
Furthermore, the White Paper states that the Bill, in order to give effect to the commitments set out in the Draft Withdrawal Agreement, will make provision so that the EU qualifications of EU citizens have had those qualifications recognised under UK legislation before the end of the implementation period, will still be able to rely on that decision in the UK. It will be for individual Member States to implement arrangements so that they recognise the qualifications of UK citizens living in the EU.
The Bill will also establish an independent authority to monitor the UK’s implementation of the citizens’ rights agreement and take action where there has been a failure to do so. Where the functions of the Independent Monitoring Authority intersect with devolved competence, the White Paper states that UK Government will work with the devolved administrations.
The UK and the EU have agreed that there will be an implementation period from exit day until 31 December 2020 when the UK’s future framework with the EU comes into force. The White Paper sets out the legislative provisions that will be required to give effect to the implementation period in UK law.
During the implementation period, the common rules across the UK and the EU will remain in place and EU law will still apply in the UK. As a result, the White Paper states that the Bill will need to amend the EU (Withdrawal) Act 2018 (‘the Withdrawal Act’). The Withdrawal Act repeals the European Communities Act 1972 so that it no longer gives effect to EU law in UK law. However the Draft Withdrawal Agreement provides that EU law should continue to apply in the UK during the implementation period. Therefore, the White Paper proposes that the Bill should amend the Withdrawal Act so that the effect of the European Communities Act is saved and not repealed until the end of the implementation period.
As a result of saving the effect of the European Communities Act 1972 during the implementation period, the role of the Court of Justice of the European Union (‘CJEU’) will also be preserved during this period. The White Paper states that the Withdrawal Agreement Bill will amend the Withdrawal Act so that provisions in the legislation which end the jurisdiction of the CJEU in the UK won’t come into force until the end of the implementation period.
Furthermore, as a result of the UK’s continued relationship with EU law during the implementation period, some provisions of the Withdrawal Act will not be required until 31 December 2020. As a result, the White Paper states that the Bill will amend the Withdrawal Act so that the conversion of EU law into ‘retained EU law’ takes place at the end of the implementation period. According to the UK Government. In addition, the Withdrawal Act will be amended by the Bill so that the power to make corrections to the body of EU law transferred into UK law so that it makes sense Brexit is extended so that it can be used for up to two years after the end of the implementation period. The power to correct deficiencies is currently subject to a two-year sunset clause beginning on exit day, meaning that the power would expire on 29 March 2019. According to the White Paper:
The existing sunset would, however, provide Ministers only three months to correct any deficiencies in retained EU law that became apparent after that conversion of EU law has taken place. This would include any changes required to EU legislation which were only introduced shortly before the end of the implementation period. This arrangement would also reduce the time available for scrutiny by Parliament of any changes. (para 72)
This would also apply to the powers of Welsh Ministers to make corrections under section 11 of and Schedule 2 to the Withdrawal Act.
The negotiated financial settlement
The Draft Withdrawal Agreement includes agreement on the components of the financial settlement, the methodology for calculating the UK’s share and the payment schedule. The White Paper states that the Bill will enable the UK Government to make payments due under the financial settlement and meet its international obligations as set out in the Withdrawal Agreement.
The White Paper proposes that the Bill could include a statutory requirement on the UK Government to provide regular updates on payments over the past year and on forecast payments and receipts to and from the EU, for the purpose of strengthening the role of the UK Parliament in scrutinising the payments made to the EU as part of the Withdrawal Agreement.
Approving and implementing the Withdrawal Agreement and future relationship framework
The White Paper states that the Bill will be introduced once the negotiations have concluded and the UK Parliament has approved the final deal under the process set out in the Withdrawal Act. The Bill must be passed before the UK’s withdrawal from the EU on 29 March 2019 in order for the Withdrawal Agreement to have effect in domestic law.
The introduction of the Bill is also dependent on the UK leaving the EU with a deal. In the event that no agreement is reached or it is not ratified in time by the UK Parliament and European Parliament, and no extension to Article 50 is secured, there would be no agreement to implement in UK law. However the White Paper states that the UK Government “is confident that it is in the interests of both sides to reach a deal and so anticipates a successful conclusion of the negotiations”.
The UK Government has “committed to working effectively with the devolved administrations” in developing the Bill and will seek the consent of the devolved legislatures as required.
Article by Manon George, National Assembly for Wales Research Service