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Paving the way to the UK’s departure from the EU – an overview of the key provisions of the European Union (Withdrawal Agreement) Bill

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13 January 2020

Following the Conservative Party’s victory in the UK’s general election in December 2019, the immediate priority for both the UK and the EU27 in relation to Brexit is now the approval, ratification and implementation of the deal agreed at a political level between the European Commission and the UK in October 2019 on the terms of the UK’s departure from the EU (the Withdrawal Agreement).

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From a UK perspective, this requires legislation to be passed to give domestic legal effect to the agreed deal by 31 January 2020, the date the UK is due to leave the EU (Exit Day). A revised draft of this proposed legislation (the European Union (Withdrawal Agreement) Bill, the WAB) was published in December and is currently working its way through the legislative process.

The WAB seeks to give effect to the Withdrawal Agreement (including the proposed transitional or implementation period provided for in the Withdrawal Agreement) by amending the European Union (Withdrawal) Act 2018 (the EUWA), the key UK statute on Brexit. By way of reminder, the primary purpose of the EUWA is to ensure that the UK continues to have a functioning statute book on Exit Day. It currently does this by providing that, on Exit Day, EU laws will cease to flow automatically into UK law via the European Communities Act 1972 (the ECA) and will instead be “onshored” as at that date and amended (principally by statutory instrument) as necessary to correct any deficiencies in those onshored laws. In broad terms, the WAB

  • amends the EUWA to give effect to the provisions of the Withdrawal Agreement requiring EU laws (and international agreements between the EU and non-Member States) to continue to apply in the UK during the transition period, notwithstanding the fact that the UK will no longer be a Member State (and to put on hold the statutory instruments amending deficiencies in onshored EU laws that would have applied on Exit Day); and
  • introduces a new section into the EUWA which ensures that all rights, powers, liabilities, obligations and restrictions arising by reason of the remainder of the Withdrawal Agreement will be recognised and available in domestic law.

A number of significant changes have been made to this draft of the WAB compared with the draft that was originally published in October 2019. In light of those changes, both the Commons and the Lords have made a number of proposals, particularly in relation to restoring the Parliamentary scrutiny provisions and the provision providing ministers with the power to make decisions on whether previous judgements of the European Court should remain binding on our courts and tribunals (both of which are discussed below). Given the Government now has a substantial majority in the House of Commons, however, the WAB is likely to make its way onto the statute book in time for Exit Day, without significant amendment.

We consider the key provisions of the WAB in more detail below as well as looking at:

  • the limited role Parliament will have in overseeing the implementation of the Withdrawal Agreement and negotiations on the future relationship between the UK and the EU27; and
  • the likelihood of any extension to the transition period to allow more time for those negotiations.

In summary, the effect of the WAB is that it will be business as usual from a legal perspective in the vast majority of cases for the duration of the implementation period. However, there is no clarity as to the legal regime that will apply following the end of that period. The time available for negotiating a trade deal is tight to say the least, and the amendments to the WAB discussed below decrease the likelihood that an extension of time will be agreed.