Brexit: la reine le veult (?)

The European Union (Withdrawal Agreement) Bill concluded its passage through Parliament on Wednesday and received Royal Assent yesterday. It is now an Act which sets out the terms on which the UK will leave the EU next week, on 31 January. It might be thought ironic in the circumstances that French language – albeit from the Norman era and meaning ‘the Queen wills it’ – is still used to signify this final legislative formality. An important provision of the Act concerns the interaction of the key dates of “exit day” and “implementation period completion day”.

An important effect of the 2020 Act is that it postpones the general disapplication of EU law in the UK from “exit day” (31 January) to “IP completion day” (31 December). This is significant because a raft of Statutory Instruments (SI) replacing EU law and made under powers in the EU (Withdrawal) Act 2018 were intended to be triggered on “exit day” (ie in a week’s time) but instead they will not be triggered until the end of the year.

The effect in civil claims (where there are factors connecting them to the EU) should be to avoid a mass of protective procedural steps having to be taken before 31 January in order to ensure that ongoing claims proceed under existing EU regimes. If that seems a little abstract, a practical example would be no longer having to issue proceedings before 31 January in order to preserve the application of jurisdiction rules in the Brussels I regulation in a given dispute.

The 2020 Act brings this about by providing that references to “exit day” in the various SIs made under the 2018 Act are “to be read instead as providing for the subordinate legislation or (as the case may be) the part to come into force immediately before IP completion day, on IP completion day or (as the case may be) at the time concerned after IP completion day.” This mechanism effectively throws the commencement of these SIs forward to the end of the year.

There may however be specific matters in which a different transitional approach to the ending of EU law will be taken and if so, that will be spelled out in the particular regulation concerned. Or, as the 2020 Act puts it, the above “does not apply so far as it is expressly disapplied by the subordinate legislation.”

Both the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 do need to be read together and cross-referred in order to understand fully the terms on which the UK is leaving the EU. Professor Michael Zander QC recently suggested that either Parliamentary Counsel or the Law Commission should be tasked with preparing a consolidated version of both Acts. While that would be a welcome step that would make navigating the provisions a great deal simpler, it would appear at the moment to be a fairly unlikely possibility.


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Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

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