Legislating for transition / implementation: implications for the EU (Withdrawal) Bill

In this April 2018 briefing paper, Swee Leng Harris of the Legal Education Foundation explores what the promised Withdrawal Agreement and Implementation Bill (WAI Bill) needs to do, and how the EU (Withdrawal) Bill needs to be amended, to provide for the prospective implementation / transition period.

When the EU (Withdrawal) Bill was introduced into Parliament in July 2017, an implementation / transition period was merely a possibility. Agreeing such a period reflecting the status quo was not UK Government policy until the Prime Minister’s speech in Florence in September 2017. Accordingly, it was hard to determine how the EU (Withdrawal) Bill could provide for implementation / transition until the UK and European Council agreed text on it in the draft Withdrawal Agreement on 23 March 2018.

However, now that the Withdrawal Agreement is significantly more likely, in the interests of the rule of law the government needs to provide greater clarity and certainty about the next steps in legislating for Brexit and the relationship between the provisions in the EU (Withdrawal) Bill and the proposed WAI Bill.

Without this clarity, MPs and Peers risk spending many hours in the coming weeks scrutinising legislation that will shortly need to be amended or will be superseded. More widely, individuals and businesses in the UK will not know what to expect from this Brexit legislation: how should they prepare to comply with the regulatory provisions that will flow from the EU (Withdrawal) Act if it is likely that some of them will soon be outdated and supplanted by the provisions of the WAI Bill?

The briefing paper considers what the likely scope and content of the WAI Bill will be, and what amendments are needed to the EU (Withdrawal) Bill to accommodate an implementation / transition period. It assumes that a Withdrawal Agreement will be reached between the EU and UK, and proceeds based on the available evidence of the UK and EU’s positions and intentions. Inevitably, these positions may change, and the intentions may not be achieved. An anticipated timeline of negotiations and legislation is set out in the appendix.

The paper concludes that a number of legislative changes are needed in order to accommodate an implementation / transition period. Some amendments to the EU (Withdrawal) Bill could be made after it becomes law, via provisions in the WAI Bill. But some amendments could and should be made earlier, while the EU (Withdrawal) Bill is still being scrutinised by MPs and Peers, to ensure that it is fit for purpose before it receives Royal Assent.

• The WAI Bill will need to replicate the effect of the European Communities Act (ECA) to bring EU law into the UK for the implementation / transition period. Notably, EU law will develop and change during the implementation / transition period, and the WAI Bill will need to enable those changes in EU law to be reflected in UK law, including through amendments to delegated legislation made under the ECA.

• The WAI Bill will also need to insert a new provision in the EU (Withdrawal) Act so that EU laws that enter into UK law through the WAI Bill form part of ‘retained EU law’.

• ‘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:

  • ‘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 (as noted above, there will need to be a power, perhaps in the WAI Bill, to update delegated legislation made under the ECA that has been saved by the EU (Withdrawal) Bill); 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, which 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’.

• Consequential amendments will be needed to enable retention of EU law under clauses 2 and 4 if the ECA is to be repealed on ‘repeal day’ (at the beginning of the implementation / transition period) and the snapshot of EU law to be taken on ‘retention day’ (at the end of the implementation / transition period).

• The delegated legislative powers in clauses 7 and 8 should be amended so that they are subject to Parliament’s approval of the future EU-UK relationship.

• Clause 9 could be repealed and replaced with a new clause providing for the next steps in the Brexit legislative process.

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