Understanding the implementation of the Withdrawal Agreement in domestic law

Emily MacKenzie

As explained in a previous post, the entry into force on 31 January 2020 of the UK’s Withdrawal Agreement, following its ratification by both the UK and the EU, would not in and of itself have meant that the Withdrawal Agreement had effect in UK law. Rather, legislation was required to implement it.

This was done in the form of the European Union (Withdrawal Agreement) Act 2020 (“2020 Act”), which received royal assent on 23 January 2020.

The way that the 2020 Act implements the Withdrawal Agreement is complex.

For one thing, you can’t simply read the 2020 Act as a free-standing piece of legislation. For the most part, it amends an earlier Brexit statute, the European Union (Withdrawal) Act 2018 (“EUWA”). Whilst the EUWA as originally enacted made provision in anticipation of the UK leaving the EU on “exit day” (which was originally defined as 29 March 2019 in section 20(1), but which was subsequently altered by secondary legislation), this was before there was any treaty to implement. So it is the amendments introduced by the 2020 Act that give effect to the Withdrawal Agreement in domestic law. Therefore, you have to look both at a consolidated version of the EUWA[1] and at the other bits of the 2020 Act that stand alone to see how the Withdrawal Agreement has been implemented.

That issue aside, the new provisions are themselves complicated and the devil is in the detail. What follows is necessarily a very brief canter through the most important aspects.

If you only have a minute to spare, the basics are as follows. The Withdrawal Agreement provides for a “transition” (also called “implementation”) period that currently lasts until 31 December 2020. The Withdrawal Agreement basically provides for not much to change in that period: the vast majority of EU law will continue to apply in the UK. There are five key mechanisms by which the UK legislation seeks to implement both these transitional provisions in the Withdrawal Agreement and the rest of that Agreement:

  1. The European Communities Act 1972 (“1972 Act”) is “saved” for the implementation period. This allows EU law to continue to flow into domestic law for the time being. However, what flows in is a snapshot of EU law as it stood on 31 January 2020 and not any subsequent changes. The transitional provisions of the Withdrawal Agreement also now form part of the EU law that flows in.
  2. Domestic legislation that stems in some way from EU law (“EU-derived domestic legislation”) is also saved for the implementation period. This means that no domestic legislation falls simply because of withdrawal. But some “glosses” are applied, which aim to ensure that such legislation continues to function properly.
  3. At the end of the implementation period, EU law becomes domestic law (subject to some fairly extensive exceptions) and will be known as “retained EU law”. This retention includes both EU-derived domestic legislation and “direct” EU law, as well as any rights, powers, liabilities, obligations, restrictions, remedies and procedures that came in via the 1972 Act.
  4. A new “conduit” is created so that the provisions of the Withdrawal Agreement other than those addressing the implementation period can flow into UK law.
  5. There are extensive powers to make secondary legislation to deal with all sorts of other issues, including to remedy any “deficiencies” in domestic law arising out of withdrawal and to implement other aspects of the Withdrawal Agreement, such as the provisions setting out citizens’ rights.

If you have a bit more time, the rest of this post expands on the above. Continue reading

The final constitutional steps to withdrawal

Emily MacKenzie

At 11 pm GMT on 31 January 2020, the UK left the EU. But what final steps had to be taken for this to happen lawfully?

Once the Withdrawal Agreement had been agreed in negotiations in October 2019, both parties to it – i.e. the UK and the EU –  had to complete the proper processes for ratifying it in accordance with their constitutional requirements. So what did those comprise? Continue reading