The European Union (Withdrawal) Bill: exit day

Exit day and the EUW Bill as introduced

The UK Government triggered Article 50 on 29 March 2017, beginning the formal process of negotiating the UK’s withdrawal from the European Union (EU). The EUW Bill was published on 13 July 2017 and is designed to prepare the UK’s statute book for the day that the UK leaves the EU: exit day.

The EUW Bill specifies that there will be an exit day: clause 1 of the EUW Bill states that “the European Communities Act 1972 is repealed on exit day”. The European Communities Act 1972 (ECA) gives effect to the UK’s membership of the EU.

Clause 14(1) defines “exit day” as: “such day as a Minister of the Crown may by regulations appoint”. The regulations made under this power will not be subject to any parliamentary procedure.[1] In the Delegated Powers Memorandum, the Government justifies this power, on the basis that the date of exit day is “dependent on the withdrawal negotiations with the EU”.[2]

Schedule 7 Part 3 paragraph 13 (b)(ii) prescribes that all powers in the EUW Bill, including the power to appoint exit day, could be used “to make different provision for different cases or descriptions of case, different circumstances, different purposes or different areas”. This could enable the Government to decide that exit day is one particular day for some parts of the Bill, but another day for others.

Exit day appears as a reference point in a number of places in the EUW Bill. For example: exit day is the cut off point for the conversion of direct EU legislation under clause 3; and the sunset clause on the power in clause 9 (under which the Government may use secondary legislation to implement the Withdrawal Agreement) means that the power cannot be used after exit day.

The domestic legal concept of exit day, as defined by the EUW Bill as introduced, is distinct from the time when the UK will leave the EU. Exit day is defined in a way that grants some flexibility which could be used to adapt to: a) any shifts in the timing as to when the UK formally leaves the EU; and b) any commitments in the withdrawal agreement that might require adaptation to the way in which the provisions of the EUW Bill operate.

Government amendments 381, 382 and 383

On Friday 10 November, the Government tabled amendments 381, 382 and 383 in order to enshrine in law the commitment that exit day will be 11pm GMT, 29 March 2019 (mid-night Brussels time). The Secretary of State for Exiting the EU, David Davis stated: “We’ve listened to members of the public and Parliament and have made this change to remove any confusion or concern about what ‘exit day’ means”.

The amendments reflects the UK Government and the EU’s stated intention, confirmed in the Joint Report on Phase 1 of the negotiations, that the UK will leave the EU on 29 March 2019.[3]

Amendments 399-405

On 15 December, Sir Oliver Letwin tabled a package of amendments that would enable the definition of exit day in clause 14 to be altered, after the EUW Bill receives Royal Assent, by secondary legislation “if the day or time on or at which the United Kingdom ceases to be a member of the EU is different from that specified in the definition”.

Exit day, Article 50 and the withdrawal agreement

Domestic legislation will not determine when the UK will leave the EU. The day that the UK will leave the EU is determined by Article 50(3) of the Treaty on European Union (TEU), which sets three possibilities for when the EU Treaties will cease to apply:

• the date of entry into force of the withdrawal agreement, or
• “failing that”, two years after the notification of withdrawal, unless
• the European Council (EU27) and the UK unanimously decide to extend the two-year period.

Both sides are aiming for 29 March 2019, two years after the UK’s notification of intention to withdraw. Article 50(3) of the TEU enables the UK and EU27 to agree that the withdrawal agreement to enter into force on any date before or after 29 March 2019. If there is no agreement and no extension, the EU Treaties will automatically cease to apply to the UK.

How could the EUW Bill be amended after it is enacted?

The exit day provisions could be amended after the EUW Bill is enacted. Clause 9 contains a power to change the provisions in the EUW Bill by secondary legislation in order to implement the withdrawal agreement. If the withdrawal agreement provided a different date from 29 March 2019, this power could be used to amend the relevant provisions.[4] Alternatively, primary legislation could also be used to amend the EUW Bill and provide for a different exit day. On 13 November 2017, the Government announced it would bring forward a Withdrawal Agreement and Implementation Bill in order to give legal effect to the withdrawal agreement.

How would a transitional period affect exit day?

The Government has indicated that it intends to secure a transitional period as part of the withdrawal agreement. The transitional period (or implementation period) would apply immediately after exit day until any future trade agreement came into force. The EU and UK have said that any transitional period would see the existing EU rules, regulations and institutional structures continue to apply in the UK for a time-limited period.

The Government has not yet set out how the transitional period would be implemented in domestic law. The Government has said that the EUW Bill is not designed to provide for transitional arrangements.[5] As a consequence, the provisions and concepts within the EUW Bill, including exit day, may have to be adapted in order to give effect to transitional arrangements.

[1] Department for Exiting the EU, Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee, para 73.

[2] Department for Exiting the EU, Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee, para 72.

[3] 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

[4] The amendment made to clause 9 on 13 December would mean that clause 9 could only be used to amend the definition of exit day if Parliament has already enacted “a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union” HC Deb 13 December 2017 Division 68

[5] House of Commons Exiting the EU Committee, Oral evidence: The European Union (Withdrawal) Bill, HC 373, Thursday 26 October 2017, qq184 and 187 (Steve Baker MP Parliamentary Under Secretary of State, Department for Exiting the European Union)