The Withdrawal Agreement Act – a commentary

See also:

The European Union (Withdrawal Agreement) Act 2020 is now law, having received Royal Assent on 23 January 2020. We have had a commentary on the Bill since the first version was published: it now needs an update.

The original European Union (Withdrawal Agreement) Bill was published on 21 October 2019 and presented to the House of Commons the next morning. The Bill was always the intended next step, but a rush was necessitated by the amending resolution passed at Parliament’s extraordinary Saturday sitting, on 19 October 2019, at which the Commons refused approval of the amended Withdrawal Agreement until an Act of Parliament be passed to incorporate it. The Bill therefore was therefore brought out on the Monday. Though it passed the Commons, the House would not allow the shortened timetable needed, and so it was abandoned, a General Election was called and the Bill fell at dissolution. This commentary was originally on that first Bill, and was updated for the new one, and now for the Act.

The Act follows the wording of the reintroduced Bill, as it passed without amendment. The new Bill was introduced and passed by they Commons on Friday 20 December 2019. The House of Lords made a few amendments, but the Commons reversed these and the Lords made no further predations upon it.

The Act is word-for-word identical to the previous Bill from October as to most of the content, but with some notable improvements. It is 101 pages long, but it is much shorter than its length.

The Act and the earlier Bill can be found here:

The Act is not as long in substance as it appears from the number of pages, since most of the material is detail; listing particular statutory provisions that are affected. This shows something of the complexity that European Union rules have driven into the statute book. A version of this Bill may have been in preparation for months, but swiftly updated for the changes in the new, Boris withdrawal agreement and for the need to deploy it when the Commons did not approve the Agreement. It is hard to see why the Bill has to be so long, but the other statutory provisions it refers to are long and tangled so it has to be so itself, apparently.

Such a Bill might have been a few lines: ‘The Government can do anything to implement the agreement, and shall’, but MPs should be grateful that the powers are more circumscribed to the purpose.

The Bill provisions

Essential provisions

Section 1 adds to the Withdrawal Act a ‘bridge’ to carry over existing European legislation into the transition period, with a few ‘to be read as if’ provisions, and Section 2 does the same for domestic regulations made under the repealed European Communities Act 1972, then Section 3 is the usual bundle of Henry VIII powers for tidying-up and Section 4 extends this in a tortuous and hard-to-follow way to powers of the devolved authorities. Hard to follow it may be, but it does the job exactly as intended – the complexity to the eye is because it is talking in general terms about powers and enactments not yet identified let alone classified. There could be head-scratching in the implementation, but it need not cause problems in practice. (Section 5 seems to go over old ground covered by Sections 1 and 2, but there may be a technical difference.)

Continued rights of residence for EU and EFTA citizens

Section 6 has provisions to give life to the “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement”. The agreements with the members of the European Free Trade Area have barely been mentioned before but were agreed in 2018. It may not excite Members of Parliament much, but the rights of a Liechtensteiner are no less important to that person as are the rights of a Frenchman. There is no need to dwell on this Clause, which does its job.

Sections 7 – 11 deal with rule-making powers in connection with continuing rights of residence for EU and EFTA citizens and the limitations thereof: much scope for virtue-signalling here but in fact the provisions have nothing unexpected nor anything those currently in opposition would not enact themselves were the positions reversed. Expect this to be a battleground for rhetoric if not substance.

Additional provisions

There follow more technical rule-making powers on other areas in the Withdrawal Agreement. First of these concerns the recognition of professional qualifications issued by EU states, which is an important part of the Withdrawal Agreement and indeed the Political Declaration: it was urged by Remainers and Leavers alike, the two sides may be expected to tear into each other about its importance in violent agreement

It continues with rule-making powers on non-discrimination etc in connection with EU workers and cross-border workers. There is even a quango to be established, ‘The Independent Monitoring Authority for the Citizens’ Rights Agreements’ to give employment to any footloose quangocrats. (Later provisions though provide a mechanism for killing this quango off when it is no longer needed.)

Then come more random rule-making powers to the point of this Part of the Bill.

Financial provisions

This is essentially to authorise payment of the continued budget participation for the next few months. The financial provisions are in Section 20. Though the ‘divorce bill’ was one of the more contentious elements of the Withdrawal Agreement, the Clause is plain and workmanlike, following the template of all supply bills.

The Ulster Protocol

The provisions for the ‘Protocol on Ireland/Northern Ireland’ begin at Section 21. It was the dark cloud over the Bill.  The rule-making powers are wide.

The DUP are not happy, and before the election, that was a major consideration (and indeed may have been the effective death of the Bill) but the balance has changed.

The Protocol is one thing, and supported by other Unionist parties, but the provisions spelled out in black and white here are deeply troubling. Whether it is gold-plating, or the hidden necessity behind the jolly words of the Protocol others must consider. That is just Section 21; the rest is less troublesome.

No extension to transition

There will be no extension to the Transition Period, which expires on 31 December 2020. The Transition is the “vassalage” period much commentated on. The Withdrawal Agreement provides a mechanism for an agreed extension, and the old Bill’s Clause 30 would have formalised a mechanism to use were that to be exercised, but this would have stored up trouble for the future. In the original version of this Commentary, we expressed hope that Parliament would instead set the end of the Transition Period in stone.

Now they have: the extension provisions are out, entirely, and Sections 33 – 35 forbid to any minister or official the use of any procedure to extend the transition period. That is a great relief. The possibility of extension makes extension inevitable, as we saw with the Article 50 procedure.

Continued negotiations

The old Section 31 is gone too, thankfully. That was another oddity, apparently fettering the negotiation of the future relationship by reports and motions of the House, and we have seen how capsy they can be.  An obligation to follow the Political Declaration might be considered fair enough as an earnest of good behaviour, but with the old Clause, no negotiation could actually have taken place without its objectives’ being approved by the Commons. That has shades of Geoffrey Howe: ‘It’s rather like sending our opening batsmen to the crease only for them to find that before the first ball is bowled, their bats have been broken by the team captain.’ There is no replacement for the old clause.

The two Houses of Parliament will have a role in shaping the new agreement as it will touch upon areas of regulation, taxation, state aid and intellectual property, but they should not hamper negotiation. The keys to getting agreement in twelve months flat are speed, aggression and agility, not committee discussion.

In a similar vein is Section (“Arrangements with EU about unaccompanied children seeking asylum”). The current Section 17 of the 2018 Withdrawal Act mandates the government to negotiate an agreement with the EU with a defined outcome for unaccompanied child asylum-seekers, but it does not contain a provision for if the defined outcome is refused, or if the government’s obligation to achieve that outcome is exploited to force the rest of the negotiation. Section 37 will amend the fixed outcome with a requirement for the Home Secretary to “lay before Parliament a statement of policy in relation to any future arrangements”. Lord Dubs had this amended in the House of Lords for deeply personal reasons: he was rescued from the Nazis in the Kindertransport. However the Clause was irrelevant to that issue and hostage to fortune. The Dubs amendment was reversed.

Other and final provisions

Section 31 at last repeals Section 13 of the Withdrawal Act with immediate effect, as being redundant. This site advocated this some time ago, and it is good to see the cussed block on the road going. It will be redundant once the Bill passes, but if it remains on the statute book, a chancer lawyer funded by die-hard Remainers may make hay with it still. Section 32, just for certainty, disapplies the approval provisions in the Constitutional Reform and Governance Act 2010.

Section 38(1) still contains a constitutional howler. It says “It is recognised that the Parliament of the United Kingdom is sovereign.” No it isn’t: sovereignty resides in the Queen and Parliament acting together. Careless wording like this can encourage adventurer lawyers to make more of it than is intended. A report published by the House of Lords notes that this section is of no legal effect.

The old Bill had a rather deceptive clause, to tempt Labour to vote for it, headed “Protection for workers’ rights”, but the heading of the lost clause is misleading: it had no protection of any rights: all it was going to do was order Ministers to make a statement about it in every new relevant Bill, which was a ridiculous burden with no legal effect.

Then after more detail and definitions that is it, after just 41 pages. 

The rest are schedules, with more detail from the provisions already described (all good fun for judicial review lawyers in the coming months).

A Henry VIII provision which is remarkable appears in Schedule 2, which constitutes the Independent Monitoring Authority for the Citizens’ Rights Agreements, in Paragraphs 39(7) and 40 (3), saying that ‘The power to make regulations under sub-paragraph (1) may (among other things) be exercised by modifying any provision made by or under an enactment (including this Act)’. That is extraordinary. As a constitutional principle, an Act should not grant power for that Act itself to be changed. It is though an example of where the Act has gone into executive detail which is considered temporary. The modifications to enactments are only authorised in the very limited context of the constitution and final dissolution of the IMA. There are better ways to do this with better wording, though perhaps not if the Bill has had to be crafted in hours.

See also