36 The Bill gives effect to the Withdrawal Agreement so that it applies directly in the UK, underpinning the rights contained within Part 2 of the Withdrawal Agreement in domestic law and providing a means of redress where these rights are not properly implemented, or where other legislation is inconsistent with the Withdrawal Agreement. It will also make provision for the corresponding EEA EFTA Separation Agreement and Swiss Citizens’ Rights Agreement. In addition, the Bill establishes an independent body to monitor the implementation and application of the citizens’ rights part of the Withdrawal Agreement and the EEA EFTA Separation Agreement in the UK.
37 Certain parts of the citizens’ rights agreements require additional implementation to operate as intended. To implement these obligations, the Bill provides Ministers of the Crown with powers to make provision through secondary legislation. The Bill makes further provision for citizens’ rights by legislating for:
a. rights in relation to entry and residence, including:
i. deadlines for applications and temporary protection;
ii. rights of frontier workers;
iii. restrictions on rights of entry and residence, and retention of existing grounds for deportation; and
b. recognition of professional qualifications;
c. co-ordination of social security systems;
d. non-discrimination and equal treatment; and
e. monitoring of citizens’ rights through the establishment of an independent monitoring authority (the IMA).
38 The powers outlined in the paragraphs on the recognition of professional qualifications, social security coordination and equal treatment are also available to the devolved administrations, subject to the detailed provisions set out in the commentary below (see paragraphs 183 to 219). The Government can use these powers in areas of devolved competence, but will not normally do so without the agreement of the devolved administrations.
39 In addition to the Bill, the Immigration Rules (made under the Immigration Act 1971) deliver the EU Settlement Scheme. The Bill makes reference to ‘Residence Scheme Immigration Rules’ which provide for all EU citizens, EEA EFTA and Swiss nationals, and their family members, resident in the UK to be eligible to apply for leave under the EU Settlement Scheme. This includes citizens who are not meeting the requirements of the Free Movement Directive at the end of the implementation period, or who currently derive an EU right of residence by virtue of their relationship to a UK national, and therefore fall outside the technical scope of the Agreements. All those within scope of the Agreements, or within scope of the UK’s domestic implementation of the Agreements, are referred to below as the ‘protected cohort’.
Other separation issues
40 The Bill provides for the application of EU law in the UK to be brought to an orderly conclusion at the end of the implementation period, particularly in respect of ongoing processes and arrangements. The provisions on the Other Separation Issues provide the technical basis for the winding down of those arrangements to ensure an orderly withdrawal and provide legal certainty for individuals and businesses. For example, the arrangements mean that goods that are placed on the UK or EU market under EU law before the end of the implementation period may continue to circulate freely between the UK and the EU until they reach their end users.
41 The future economic and security relationship between the UK and the EU could supersede the separation provisions agreed in many cases. This may then require new substantive arrangements to be agreed and put in place between the UK and the EU to ensure a smooth and orderly transition from the implementation period to the future relationship. The arrangements set out in the Other Separation Issues are without prejudice to negotiations on the UK’s future relationship with the EU.
42 The Other Separation Issues all relate to areas currently governed by EU law. They cover:
a. goods placed on the market;
b. ongoing customs procedures;
c. ongoing VAT and Excise Duty matters;
d. intellectual property;
e. ongoing police and judicial cooperation in criminal matters;
f. ongoing judicial cooperation in civil and commercial matters;
g. data and information processed or obtained before the end of the implementation period or on the basis of the Withdrawal Agreement;
h. ongoing public procurement and similar procedures;
i. Euratom related issues;
j. Union judicial and administrative procedures;
k. administrative cooperation procedures;
l. privileges and immunities; and
m. other issues relating to the functioning of the institutions, bodies, offices and agencies of the Union.
43 Where relevant, similar agreement on these matters has also been agreed with the EEA EFTA states as part of the EEA EFTA Separation Agreement.
44 As already set out, the rights and obligations arising under the Agreements will be recognised and available in domestic law by virtue of clauses 5 and 6 of the Bill. This includes those rights and obligations contained within the Other Separation Issues. In addition to this general implementation, there will be a need to set out some further detail in domestic legislation to ensure that the Other Separation Issues are given full effect in the domestic legal system. For example, on public procurement, EU procurement rules are currently implemented in domestic regulations. These will need some technical amendments to ensure that they continue to function for procurement procedures that are ongoing at the end of the implementation period.
45 The Bill will, therefore, include provisions to enable the Government to implement the arrangements on the Other Separation Issues, as set out in Part 3 of the Withdrawal Agreement and the EEA EFTA Separation Agreement. This will be done via a power, exercisable by a Minister of the Crown, which is primarily to be used to adapt existing implementing legislation and regulations made under the EU (Withdrawal) Act 2018. The Government can use this power in areas of devolved competence, but will not normally do so without the agreement of the devolved administrations. An equivalent power will also be available to the devolved administrations, subject to the detailed provisions set out in the commentary below.
Main financial provision
46 The UK and the EU have agreed a financial settlement which covers the payments the UK has committed to making to the EU, and the payments that the UK will receive from the EU. The financial settlement does not address any other costs arising as a consequence of the UK exiting the EU, such as the costs of new administrative arrangements that may need to be put in place by either the UK or the EU, or in relation to the future relationship between the UK and the EU.
47 The methodology for the financial settlement is described in the Joint Report from the Negotiators of the European Union and the United Kingdom Government that was published in December 2017. The Joint Report states that the implementation of the agreed methodology will be based on the following principles:
a. the first principle is that the UK will not finance any commitments that do not require funding from Member States, and will receive a share of any financial benefits that it would have received had it remained a Member State.
b. the second principle establishes the UK’s share of the EU’s obligations where they are a component of the settlement. For 2019-20, the current methodology will be used for determining the UK’s annual contributions to the EU budget. For payments after 2020, the UK’s share will be the average of its share of the EU budget (taking into account the rebate) over 2014-20.
c. the third principle is that the UK will only be required to make payments as they fall due. The UK will not be required to make payments earlier than would have been the case had it remained a Member State, except for a few specific cases where it might be in the interest of both sides to settle these early. This is particularly relevant for pensions, given that the costs will decline steadily over a long-term period.
48 The Withdrawal Agreement sets out the methodology for calculating the payments to, and receipts from, the EU. It does not set out the final sum that will be paid to the EU. The Withdrawal Agreement does not provide for discretion in the calculation of payments after withdrawal, other than the possible early settlement of certain obligations.
49 To allow the UK Government to meet its international commitments set out in the Withdrawal Agreement, the Bill contains a legislative mechanism to authorise payment of those financial obligations.
50 The legislative mechanism in the Bill that allows for Withdrawal Agreement obligations to be met during the period from exit day until 31 March 2021 is a ‘standing service provision’. This means that payments will be made from the UK’s Consolidated Fund, or, if the Treasury so decides, from the National Loans Fund. Spending under this finance authority would wind down as obligations naturally expire under the terms of the Withdrawal Agreement. After 31 March 2021, all obligations payable under the Withdrawal Agreement (other than those relating to the traditional own resources of the EU, such as customs duties which UK authorities have collected on behalf of the EU, which will continue to be paid pursuant to the standing service provision) will be met through supply. The date upon which the standing service provision will cease to apply may be altered by regulations, subject to the affirmative resolution procedure in the House of Commons.
51 The Bill also provides that receipts from the EU (e.g. the reimbursement to the UK of the paid-in subscribed capital of the European Investment Bank) and received by a Minister of the Crown or a government department are to be paid into the Consolidated Fund, or if the Treasury so decides, the National Loans Fund.
52 The Bill allows payments to be made only in order to meet financial commitments that are required by the Withdrawal Agreement. This finance authority cannot be used for payments relating to the future relationship between the UK and the EU.
53 The Protocol on Ireland/Northern Ireland in the Withdrawal Agreement provides arrangements that ensure that the UK (including Northern Ireland) does not remain in a customs union with the European Union. The Protocol also makes arrangements seeking to ensure that there are no checks and controls conducted at or near the border between Northern Ireland and Ireland, as well as providing that the arrangements contained in the Protocol are to be subject to democratic consent in Northern Ireland in relation to their operation and continuation.
54 The Bill ensures that the rights and obligations arising under the Withdrawal Agreement will be recognised and available in domestic law by virtue of Article 4 of that Agreement and clause 5 of this Bill. This includes those rights and obligations contained within the Protocol. This effect will need to be supplemented to ensure that all of the relevant elements of the Protocol and its Annexes are given full effect in the UK legal system.
55 The Bill therefore includes provision to enable the Government to implement the arrangements necessary to comply with the Protocol to supplement these general overarching provisions. This will be done via a power exercisable by a Minister of the Crown. The Government can use this power in areas of devolved competence, but will not normally do so without the agreement of the relevant devolved administration.
56 The Bill will also include a corresponding power for the devolved authorities to take appropriate steps to give effect to the Protocol in areas which fall within their legislative competences.
57 The UK has committed, in Article 2(1) of the Protocol, to ensure that the UK’s withdrawal from the EU will not lead to any diminution of rights, safeguards and equality of opportunity in Northern Ireland, as set out in the ‘Rights, Safeguards and Equality of Opportunity’ chapter of the Belfast (Good Friday) Agreement 1998. This commitment has effect in domestic law by virtue of clause 5. Further provision is made in the Bill to give full effect to the UK’s commitment in Article 2(1), including a number of amendments to the Northern Ireland Act 1998:
a. inserting a fetter (i.e. restriction) on the legislative competence and the powers of the Northern Ireland Assembly and Northern Ireland Ministers and departments respectively, preventing them from acting in a way which is incompatible with Article 2(1) of the Protocol; and
b. giving new functions to two statutory institutions established under the Belfast (Good Friday) Agreement 1998 in Northern Ireland – the Northern Ireland Human Rights Commission (NIHRC) and the Equality Commission for Northern Ireland (ECNI) – to ensure that each commission has the appropriate and necessary statutory functions, respecting their independence and distinct mandates, to take on the role of the dedicated mechanism as provided for by Article 2(1) of the Protocol.
58 An amendment is also made to the Northern Ireland Act 1998 in order to confirm the NIHRC’s ‘own motion’ standing powers to bring proceedings under the Human Rights Act 1998.
59 The power referred to above to implement the Protocol may also be exercised by a Minister of the Crown to facilitate the access of qualifying Northern Ireland goods to the market in Great Britain, but cannot be exercised in such a way as to make new arrangements for North-South cooperation.
60 Moreover, the Bill makes it clear that a Minister of the Crown cannot agree to the making of a recommendation by the Joint Committee under Article 11(2) of the Protocol that would have the effect of:
a. altering the arrangements for North-South co-operation as set out in the Belfast (Good Friday) Agreement 1998; or
b. establishing a new implementation body or amending the functions of an existing implementation body (as defined in the relevant sections of the Northern Ireland Act 1998).
61 The Bill ensures that Parliament has a role in shaping the UK’s proposals for the long-term future relationship with the EU. The Bill legislates for this commitment, by providing Parliament with oversight of negotiations for our future relationship.
62 In addition to these requirements for parliamentary oversight ahead of ratification of the Withdrawal Agreement, the government has been clear that Parliament should have a significant role in shaping the second phase of negotiations with the EU, which will build on the Political Declaration to agree a legally-binding treaty governing the future relationship between the UK and the EU. Provisions in the Bill reflect this commitment, and the specific proposals are set out in paragraph 338 to 350 below. These provisions are not related to the implementation of the Withdrawal Agreement.
63 Before negotiations of the future relationship between the UK and the EU can begin, the government will be under a duty to make a statement on the objectives of those negotiations. Ministers must then put that statement to a vote in the House of Commons for approval, and move a motion for the House of Lords to take note of the statement. If the Commons does not grant its approval, the negotiations for the second phase cannot begin.
64 During the negotiations, Ministers will be under an ongoing duty to seek to achieve the objectives set out in that statement. If the realities of negotiation require the Government to change its objectives, the Government must put the revised statement back to Parliament for approval.
65 The government will also be under an obligation to report on its progress towards objectives. This reporting provision requires the Government to make a statement to Parliament every three months on progress towards achieving its negotiating objectives.
66 The final aspect of this provision ensures that Parliament has the final approval on any treaty governing the future relationship that has been negotiated between the UK and the EU.
67 This enhanced role for Parliament will follow on from the existing mechanism for parliamentary approval of the outcome of the first phase of negotiations with the EU set out in the EU (Withdrawal) Act 2018.
68 The Bill will also provide for parliamentary scrutiny over any EU legislation made, or which may be made during the implementation period that, in the opinion of the European Scrutiny Committee, affects the UK’s vital national interests.
69 Additionally, the Bill also provides that Ministers accountable to Parliament must personally represent the UK in the UK-EU Joint Committee established by the Withdrawal Agreement.
Protection for Workers’ Rights
70 Alongside the provisions in the Withdrawal Agreement, the previous Government committed on 6 March 2019 to bringing forward legislation which would provide additional parliamentary scrutiny in considering future changes to UK and EU employment rights and health and safety standards for workers. These clauses are included in this Bill.
71 Workers’ rights will be protected after the UK’s withdrawal from the EU. The EU (Withdrawal) Act 2018 will ensure that workers’ rights that are currently derived from EU law will continue to have effect in domestic law, including the Working Time Regulations 1998 and the Agency Workers’ Regulations 2010 as well as protections covered in the Equality Acts.
72 Provisions in this Bill require the Government to make a statement of compatibility with the principle of ‘non-regression’ (that common EU – UK rights as they stand at the end of the implementation period will not be reduced) whenever introducing a bill related to workers’ rights. It also requires a Minister to make arrangements to give Parliament the opportunity to consider any future changes to EU law that change EU workers’ rights after the end of the implementation period and, where they diverge from current UK standards, whether Parliament agrees with the Government’s proposed course of action. Further detail is set out in the summary below (starting at paragraph 503).
73 For the most part, the relevant legal background is explained in the policy background section of these notes. Where further detail is helpful, it is set out below.
EU (Withdrawal) Act 2018
74 The EU (Withdrawal) Act 2018 repeals the ECA, converts EU law as it stands at the moment of exit into domestic law, and preserves laws made in the UK to implement EU obligations. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The interaction of the EU (Withdrawal) Act 2018 with the Bill is explained in more detail in the relevant sections of these notes.
75 Rights in relation to entry and residence:
a. Free movement rights for EU citizens, EEA EFTA nationals, and Swiss nationals are underpinned by the EU treaties, Directive 2004/38/EC (the Free Movement Directive), and the EU-Swiss Free Movement of Persons Agreement (FMOPA). These are implemented domestically primarily through the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016). The EEA Regulations 2016 are secondary legislation made under the European Communities Act 1972 and Nationality, Immigration, and Asylum Act 2002. The EEA Regulations 2016 provide for various citizens’ rights, including residence rights, appeal rights, and rights of frontier workers1, and set out thresholds for deportation and exclusion of EU citizens, EEA EFTA nationals, and Swiss nationals.
b. Free movement covers four broad areas: the right to enter the UK; the right to reside; the right to work; and rights to access benefits and services, and to equal treatment. The citizens’ rights provisions in the Bill, along with the EU Settlement Scheme established under the Immigration Rules, provide for the domestic implementation of the UK’s obligations under the Agreements in these four broad areas.
c. As free movement ends, the UK will move away from the EU law framework of rights defined in the EU treaties, the Free Movement Directive, and FMOPA. The EEA Regulations 2016 will be revoked at the end of the implementation period through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. In place of the EU law framework of residence, a domestic law framework for residence will be established based on the skills people can contribute to the UK.
d. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members resident in the UK before the end of the implementation period are already able to apply for residence status under the EU Settlement Scheme.
e. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members who have been continuously resident in the UK for five years are eligible for settled status, which is also referred to as ‘indefinite leave to remain’ in current UK immigration law. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members who have been continuously resident in the UK for less than five years are eligible for ‘pre-settled status’, also referred to in UK immigration law as ‘limited leave to remain’. This means that the individual is granted five years limited leave to remain, and is eligible to apply for settled status as soon as they have completed five years continuous residence in the UK.
f. EU citizens, EEA EFTA nationals, and Swiss nationals with either settled status or pre-settled status will continue to be entitled to work, study, and access public services and benefits on the same basis as they do now. These entitlements for EU citizens, EEA EFTA nationals and Swiss nationals will be subject to future domestic policy changes which apply to UK nationals.
g. As set out in the policy summary section of these notes, the EU Settlement Scheme has been legislated for through Immigration Rules under the Immigration Act 1971. In addition, the Bill will enable certain parts of the EEA Regulations 2016 to be saved and modified so that they continue to apply for a specified period to persons within the scope of citizens’ rights protections as set out in the Withdrawal Agreement and the Bill. The interaction between the EEA Regulations 2016 and the citizens’ rights provisions in the Bill is explained in detail in the commentary on the provisions of the Bill below.
76 Professional qualifications:
a. Directive 2005/36/EC (Professional Qualifications Directive), Directive 98/5/EC (Lawyers Establishment Directive), Directive 2006/43/EC (Audit Directive), and Council Directive 74/556/EEC (Professions involving trade, distribution and professional use of toxic products) provide for the recognition of professional qualifications. EU citizens and EEA EFTA nationals and their family members residing or working in the UK with recognitions under these Directives will continue to have qualifications recognised under the Withdrawal Agreement and EEA EFTA Separation Agreement.
b. Swiss nationals with recognised qualifications under Directive 2005/36/EC, Directive 98/5/EC, Council Directive 74/556/EEC, Council Directive 86/653/EEC (concerning self-employed commercial agents) and Council Directive 77/249/EEC (to facilitate the effective exercise by lawyers of freedom to provide services) will continue to have qualifications recognised under the Swiss Citizens’ Rights Agreement.
c. In the UK, these directives are implemented via both primary and secondary legislation including the EU (Recognition of Professional Qualifications) Regulations 2015, the European Communities (Recognition of Professional Qualifications) Regulations 2007 and sector specific legislation such as the Medical Act 1983. The European Communities (Lawyer’s Practice) Regulations 2000 and the European Communities (Lawyer’s Practice)(Scotland) Regulations 2000 implement the Lawyers Establishment Directive. The rights of approved statutory auditors are implemented in domestic law under Part 42 of the Companies Act 2006.
d. During the implementation period, individuals with professional qualifications may continue to apply for recognition of those qualifications. For those in scope of the residence parts of the Agreements, any qualifications recognised, or in the process of recognition, by the end of the implementation period will continue to be recognised. Decisions on recognition of qualifications sought after the end of the implementation period will be subject to the outcome of future relationship negotiations.
e. For those in scope of the Swiss Citizens’ Rights Agreement, it has been agreed that any Swiss or UK national with a qualification or in the process of obtaining a qualification at the end of the implementation period can apply for recognition of their qualifications within four years of the end of the implementation period.
77 Co-ordination of social security systems:
a. This part is underpinned by the EU regulations on social security co-ordination, which protect the social security position of persons who move and work around the EU. These are Regulations (EC) 883/2004 and 987/2009, and Regulations (EEC) 1408/71 and 574/72 in respect of third country nationals in the UK.
b. The EU regulations on social security coordination will continue to apply in the UK at the end of the implementation period for persons in scope of the Agreements. The Bill will ensure that the EU regulations will have the same legal effect in the UK as they do in Member States. Further explanation as to the application of EU social security coordination regulations in the UK via the Bill is provided in the commentary section below.
78 Equal treatment:
a. Articles 18, 21, 45 and 49 of the Treaty on the Functioning of the EU (‘TFEU’), Article 24 of Directive 2004/38 and Regulation (EU) 492/2011 provide for the prohibition of discrimination on the grounds of nationality and for equal treatment between EU citizens and nationals of the host state. There are similar protections in the EEA EFTA Separation Agreement and the FMOPA.
b. For persons residing and working in the UK on the basis of the Agreements, the prohibition on discrimination on grounds of nationality and rights to equal treatment will continue. Further explanation as to how the Bill provides for this is explained below.
1 Frontier workers are EU citizens, EEA nationals, or Swiss citizens who pursue employment (including self-employment) in the UK but are not resident in the UK.
Territorial extent and application
79 Clause 39 sets out the territorial extent of the Bill; that is the jurisdictions which the provisions in the Bill are intended to form part of the law.
80 This Bill extends to the whole of the UK. In addition, repeals and amendments made by the Bill have the same territorial extent as the legislation that they are repealing or amending. For example, section 1 of the EU (Withdrawal) Act 2018, which repeals the ECA, extends to Gibraltar and the three Crown Dependencies (the Channel Islands and the Isle of Man) to the extent that the ECA itself extended to those territories. Similarly, Section 24(3) of the EU (Withdrawal) Act 2018 extends regulations made under Section 8(1) or 23 of that Act to correct deficiencies in retained EU law, and make consequential, transitional or saving provision in consequence of that Act, to Gibraltar.
81 This means the saving of the ECA in clause 1 (which will alter the effect of section 1 of the 2018 Act), will extend to those jurisdictions to the same extent as the original Act, and the deferral of deficiencies or consequential subordinate legislation under the EU (Withdrawal) Act 2018 at paragraphs 1 to 3 of Schedule 5 will extend to Gibraltar in its application to such legislation that extends there by virtue of section 24(3) of the EU (Withdrawal) Act 2018. Beyond this, as Gibraltar and the Crown Dependencies normally legislate for themselves to give effect to relevant obligations under international agreements – as is the case with Gibraltar under the Constitution of Gibraltar 2006 – the Bill does not extend to those territories.
82 The UK Parliament does not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly without the consent of the legislature concerned. It is also the practice of the Government to seek the consent of the devolved legislatures for provisions which would alter the competence of those legislatures or the devolved administrations in Scotland, Wales and Northern Ireland.
83 The provisions for which the Government will seek legislative consent are set out in full at Annex A. In summary, they include the following provisions of the Bill:
a. In relation to the citizens’ rights provisions in the Bill, the conferral on the devolved administrations of powers to make provision within devolved competence (as defined in the Bill) in relation to social security coordination, recognition of professional qualifications and equal treatment, as these will alter the competence of the devolved administrations.
b. The conferral on the devolved administrations of a power to implement the Other Separation Issues so far as that is within devolved competence (as defined in the Bill), as this will alter the competence of the devolved administrations.
c. The clauses establishing the IMA, as these legislate in areas of devolved legislative competence and alter the competence of the devolved administrations.
d. The clause giving effect to the implementation period and related provision, as this will alter the competence of the devolved administrations and legislatures. In addition, the conferral on the devolved administrations of supplementary powers to make provision in connection with the implementation period within devolved competence (as defined in the Bill), and amendments to the powers exercisable by the devolved administrations in Part 1 of Schedule 2 to the EU (Withdrawal) Act 2018, as these will alter the competence of the devolved administrations.
e. The conferral on the devolved administrations of a power to implement the Northern Ireland Protocol, so far as that is within devolved competence (as defined in the Bill), as this will alter the competence of the devolved administrations.
f. Provisions giving effect to the mass deferral of statutory instruments made under the EU (Withdrawal) Act 2018, and conferring on devolved administrations the power to disapply or make different provision in particular cases; and to specify relevant enactments for this purpose. These provisions will alter the competence of the devolved administrations.
84 See the table in Annex A for a summary of the position regarding territorial extent and application in the United Kingdom. The table also summarises the position regarding legislative consent motions and matters relevant to Standing Orders Nos. 83J to 83X of the Standing Orders of the House of Commons relating to Public Business.