Fitting a transition / implementation period into the process of legislating for Brexit

The rule of law would be served by greater clarity and certainty on the next steps of legislating for Brexit. Questions are mounting about how the UK will provide for a post-Brexit implementation / transition period in UK law and what the implications of such a period will be for the European Union (Withdrawal) Bill.

The Government’s answer has been the promised Withdrawal Agreement and Implementation Bill (WAI Bill), but now that a status quo implementation / transition period has been more-or-less agreed between the UK and the EU, the EU Withdrawal Bill could be amended during its passage through Parliament to accommodate implementation / transition.

The current lack of clarity on the process of legislating for Brexit means that individuals and businesses in the UK do not know what to expect from the EU Withdrawal Bill, WAI Bill, or other Brexit legislation. How can individuals and business in the UK know whether to comply with the EU Withdrawal Act and regulations made under it if they are also told that it will soon be amended by the WAI Bill?

What the WAI Bill needs to do, and how the EU (Withdrawal) Bill needs to be amended, to provide for the implementation / transition period are explored in more detail in a new briefing paper.

In brief, the EU (Withdrawal) Bill will:

1. Repeal the European Communities Act 1972 (ECA);

2. Retain EU law in UK law, after which it will be ‘retained EU law’, a category of law defined by the EU Withdrawal Bill/Act that will be part of UK law; and

3. Give delegated legislative powers to ministers to modify retained EU law by delegated legislation.

In order for the implementation / transition period to proceed with a continuation of the status quo, the EU Withdrawal Bill must be amended. These amendments would change the ‘when’ of the EU Withdrawal Bill, but not its ‘how’ or ‘what’, in terms of retaining and correcting EU law in UK law.

According to the draft UK-EU Withdrawal Agreement, the UK and EU have agreed that ‘Union law shall be applicable to and in the United Kingdom during the transition period’ with certain specified exceptions.

But, as the Hansard Society has noted in another recent briefing, EU law will not remain the same during the implementation / transition period - like any body of law, it will develop and change. Thus, there will need to be a dynamic, not static, status quo during implementation / transition, and UK law will need to reflect changes in EU law.

The WAI Bill could replicate the effect of the European Communities Act 1972 (ECA) so that the WAI Bill becomes the legal vehicle through which EU law applies in the UK. Since EU law will develop and change during implementation / transition, the WAI Bill will need to enable those changes in EU law to be reflected in the UK.

‘Exit day’ serves multiple functions in the EU Withdrawal Bill, and needs to be split into at least two if not more different points in time. Presently, ‘exit day’ is:

1. the day on which the ECA is repealed;

2. the day on which the snapshot of EU law is taken, and converted into ‘retained EU law’ in UK law;

3. the day after which the Court of Justice of the European Union (CJEU) ceases to have jurisdiction over the UK; and

4. the beginning of the sunset period for some delegated powers in the Bill (some powers are not subject to a sunset clause).

Rather than referring to all of these points in time as ‘exit day’, the EU Withdrawal Bill needs to be amended to identify and distinguish between different points in time, including:

• ‘repeal day': the beginning of the implementation/transition period when the ECA is repealed under clause 1 and regulations under that Act are saved under clause 2; and

• 'retention day': the point in time at which EU law is retained, i.e. the ‘snapshot’ of EU law is taken under clauses 2-4. This should be the later of the day on which the UK ceases to be a member of the EU or the end of the implementation/transition period. If no transition/implementation period were agreed between the EU and UK, then retention day will be the same day as ‘repeal day’.

Defining ‘retention day’ as the end of the implementation / transition period follows the underlying logic of the EU Withdrawal Bill, namely to enable legal continuity after the implementation / transition. In the interest of legal certainty, the snapshot of EU law taken under clauses 2-4 of the EU Withdrawal Bill must be taken at the end of the implementation / transition period and not at the beginning. Otherwise, there will be a lack of legal continuity in relation to EU laws made during the implementation / transition period, and legal uncertainty as to the status of those laws after the end of the implementation / transition period.

The EU Withdrawal Bill gives delegated legislative powers to ministers under clause 7 to modify retained EU law by delegated legislation to ‘correct’ retained EU law to address a failure of law to operate effectively arising from the withdrawal of the United Kingdom from the EU. However, when will there be sufficient certainty about the consequences of the UK’s withdrawal from the EU for this power to be exercised properly? Clause 7 is due to come into force on the day the Withdrawal Act is passed. Yet, the Government has agreed with the EU that it wants an implementation / transition period that reflects the status quo, and indicated that there are areas where the UK may seek ongoing cooperation and perhaps alignment with the EU after that.

How will the Government know which aspects of retained EU law need to be changed using clause 7 before, at a minimum, a high-level agreement on the UK and EU’s future relationship has been reached? How can Parliament scrutinise regulations under clause 7 without certainty on the areas where there will definitely be divergence between the UK and EU, and the areas where there might be ongoing cooperation and perhaps alignment?

Rather than increasing legal certainty for business and individuals in the UK about what the law will be in the UK post-exit, premature regulations under clause 7 would create uncertainty as to the UK’s capacity to cooperate with the EU or retain alignment with EU laws if agreed in negotiations. Accordingly, the delegated legislative power in clause 7 should be amended so that it is subject to Parliament’s approval of the future EU-UK relationship. Relatedly, delegated legislation under clause 7 should not come into force until the UK is no longer a member of the EU at the earliest, or in many cases at the end of the implementation/transition period.

The views expressed in this blogpost and associated briefing paper are those of the author alone. The Hansard Society provides a non-partisan forum for the exchange of ideas and, in publishing this content, aims to contribute to public knowledge and debate.