EU (Withdrawal) Bill: clauses 9, 8 and 17

This paper addresses clauses 9, 8 and 17 of the EUW Bill, each of which contains a delegated power for ministers to make secondary legislation, for specific purposes, in order to prepare for Brexit:

• Clause 9 provides the Government with the legislative authority to use secondary legislation to implement any withdrawal agreement agreed with the European Union under Article 50(2) Treaty on European Union (TEU);
• Clause 8 gives Government the power, until two years after exit day, to make secondary legislation to prevent or remedy any breaches of the UK’s international obligations that might arise from Brexit; and
• Clause 17 grants powers to make consequential and transitional provisions.

A Commons Library Briefing from September 2017, European Union (Withdrawal) Bill (CBP8079), covers all of the provisions in the Bill. The parliamentary procedures for scrutinising secondary legislation made under these powers are set out in Schedule 7 of the EUW Bill and will also be debated on day 7 of the Committee Stage. Schedule 7 is discussed in Commons Briefing Paper 8172, European Union (Withdrawal) Bill: scrutiny of secondary legislation (Schedule 7), 7 December 2017.

Clause 9: implementing the withdrawal agreement

Clause 9 of the EUW Bill provides the UK Government with the ability to implement the EU withdrawal agreement in domestic law using secondary legislation.

Since the EUW Bill was introduced, the UK Government announced (on 13 November 2017) that it will bring forward primary legislation, the ‘Withdrawal Agreement and Implementation Bill’, to implement the withdrawal agreement and any ‘implementation’ (transition) period.

On 8 December 2017, the Joint Report from the negotiators of the European Union and the United Kingdom Government (the Joint Report on Phase 1) was published. The Joint Report on Phase 1 makes a number of references to the WAI Bill, including:

The UK Government will bring forward a Bill, the Withdrawal Agreement & Implementation Bill, specifically to implement the Agreement. This Bill will make express reference to the Agreement and will fully incorporate the citizens' rights Part into UK law. Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.[1]

The Government has not yet explained how the use of clause 9 will be coordinated with either the proposed Withdrawal Agreement and Implementation Bill, or with the promised vote, on a motion both Houses of Parliament, on the substance of a withdrawal agreement. It has however indicated that clause 9 could be used if the negotiations conclude late in the two-year period. This could mean that clause 9 might only be used if there was not enough parliamentary time to implement the withdrawal agreement through primary legislation. The Communication from the Commission to the European Council on the progress of the negotiations, published on the 8 December 2017, set out the following on the timings of the process:

European Negotiations should be complete by autumn 2018 to allow good time for the Withdrawal Agreement to be concluded by the Council after obtaining consent of the European Parliament, and to be approved by the United Kingdom in accordance with its own procedures before 29 March 2019.[2]

Clause 9 gives rise to a number of significant interlocking issues, each of which is discussed in this briefing:

• Purpose, scope and limits of the clause 9 power. The purpose of clause 9 is to enable UK Ministers to make regulations “for the purposes of implementing the withdrawal agreement” made under Article 50, “whether or not ratified”. The scope of clause 9 is notable as it would enable regulations to “amend the Bill itself in order to reflect the outcome of negotiations”. The Joint Report of Phase 1 indicates that elements of the EUW Bill, for example clause 6(1)(b) on references to the Court of Justice of European Union, could need to be amended to give effect to the Withdrawal Agreement.[3] Clause 9 is constrained by both express and implied limitations, and also has a ‘sunset clause’ which provides that the power expires on exit day. Regulations made under clause 9 would be subject to parliamentary scrutiny as provided by Schedule 7 part 2 paragraph 6. (Section 2)
• Constitutional implications of clause 9. The precise form and constitutional status of the legislation used to implement the withdrawal agreement, and in particular to secure any rights that it contains, is a significant issue in the negotiations with the EU. (Section 2.5)
• Parliament’s role in the withdrawal negotiations. The Government has promised a vote in Parliament on the substance of a withdrawal agreement before it signs it, and Parliament would later have the opportunity to delay ratification under the Constitutional Reform and Governance Act 2010. But neither of these would give Parliament a formal power to amend the terms of the withdrawal agreement. Voting 'no' in a 'meaningful vote' on the withdrawal agreement could result in the UK leaving the EU without an agreement. (Section 3.2)
• Parliament’s role in implementing the withdrawal agreement. While the withdrawal agreement is being negotiated, Parliament is debating the powers it will have for implementing the (as yet unknown) provisions of the agreement. It is likely that Parliament would then consider legislation to implement the agreement only if the vote on the substance of the agreement is passed. It is likely that any agreement will have profound implications for the UK constitutional framework and legal system. In particular, it is likely to necessitate major changes to areas of retained EU law such as citizens’ rights, Irish border issues and dispute resolution. (Section 3.3)
• Transitional arrangements. If a transition or ‘implementation’ period is agreed as part of the Article 50 agreement, implementing legislation would be needed for that too. This could require changes to the provisions of the EUW Bill itself. The Government has said that the EUW Bill is not intended to provide for any transition period. (Section 3.4)
• Relationship with the proposed ‘Withdrawal Agreement and Implementation Bill’. In November the Government announced that it would “enshrine the Withdrawal Agreement between the UK and the EU” in UK domestic law through new primary legislation: the Withdrawal Agreement and Implementation Bill, which would also deal with the complexities of legislating for an ‘implementation period’. The Joint Report on Phase 1 indicates that elements of the withdrawal agreement could require changes to the EUW Bill, as it is currently drafted, for example in relation to the role of the CJEU after exit day (clause 6 of the EUW Bill).[4] These changes could be through the WAI Bill or by using the delegated power in clause 9 of the EUW Bill. (Section 3.5)
• Timing. It will not be possible to publish implementing legislation under clause 9 (or the proposed new Bill) until the withdrawal agreement is finalised. But depending on the timing of the negotiations, this could leave very little time to make all the necessary implementing legislation before exit day. Clause 9 could therefore be used to effect a number of significant policy changes via secondary legislation in a short timescale. The scarcity of time is central to the Government’s justification for including a power to implement the withdrawal agreement through secondary legislation. The commitment to the WAI Bill in the Joint Report on Phase 1 would require the Government to find the necessary parliamentary time to ensure that the WAI Bill was passed before exit day. It is presumed, but not legally necessary, that the vote on the substance of the withdrawal agreement in both Houses of Parliament will occur before either the implementing primary or secondary legislation. (Section 3.6)
• Role of the devolved authorities. The devolved authorities have parallel powers to clause 9 in Schedule 2 part 3, but with more limits than apply to UK Ministers. The devolved authorities have no formal role in scrutinising or agreeing international treaties such as the withdrawal agreement, but they discuss the negotiations in a Joint Ministerial Committee (JMC) subcommittee on EU Negotiations. There has however been criticism of how this subcommittee is used. (Section 3.7)

Clause 8: complying with international obligations

Clause 8 gives UK Government ministers the power, until two years after exit day, to make secondary legislation to prevent or remedy breaches of the UK’s international obligations that might arise from Brexit.

The Government says this is needed because clause 7 may not always provide the requisite power (clause 7 only covers failure of retained EU law to operate effectively, or deficiencies in retained EU law). But it has given only one example of where clause 8 might be used. It is not clear what other breaches of international obligations arising from leaving the EU could be prevented or remedied by UK legislation under clause 8.

Clause 8 is subject to several limitations, but unlike clauses 7 and 9, the power in clause 8 may be used to impose taxation.

Parallel powers for the devolved administrations are set out in Schedule 2 Part 2.

Clause 17: consequential and transitional provisions

Clause 17(1) contains a power to make such consequential provisions “as the minister considers appropriate in consequence of this Act”. The purpose of clause 17(1) is to enable the Government to make changes to primary and secondary legislation that might arise as a consequence of this Bill.

Clause 17(5) enables the Government to make regulations to provide for transitional provisions that might be needed as a result of this Bill coming into force. The Government cites two examples of how this power might be used. The first is that the power could be used to save section 2(3) of the European Communities Act 1972 in respect of liabilities incurred while the UK was a Member State. The second is that that the power could be used to make provision for court cases in the Court of Justice of the EU that are ongoing on exit day.

[1] Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union (8 December 2017) para 36

[2] Communication from the Commission to the European Council (Article 50) on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union p15

[3] Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union (8 December 2017) para 38

[4] Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union (8 December 2017) para 38