In this post, Jack Williams of Monckton Chambers explains “relevant separation agreement law”, as introduced into domestic law at the end of the transition period by the EU (Withdrawal Agreement) Act 2020 (the “2020 Act”).
The 2020 Act implements the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (each defined in section 39(1) of the 2020 Act). It does so largely by amending the EU (Withdrawal) Act 2018 (the “2018 Act”) to provide for the conduit pipes by which the provisions from these three international sources flow into domestic law. This law is called “relevant separation agreement law”, which is distinct from other source of EU Relations Law, namely “retained EU law” (as discussed here) and law flowing from the TCA (as discussed here).
What is “relevant separation agreement law”?
The purpose of “relevant separation agreement law” is twofold: first, to provide for the direct effect of certain provisions of the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (plus the EU law applied by them), and second, to provide for the further domestic effect of other provisions in the three Agreements.
“Relevant separation agreement law” is defined by section 7C(3) of the 2018 Act (as inserted by the 2020 Act). There are seven categories of “relevant separation agreement law”. These are: (i) directly effective provisions of the Withdrawal Agreement (section 7A of the 2018 Act); (ii) directly effective provisions of the EEA EFTA Separation Agreement (section 7B of the 2018 Act); (iii) directly effective provisions of the Swiss Citizens’ rights Agreement (section 7B of the 2018 Act); (iv) specifically implemented citizens’ rights from the three Agreements (Part 3 of the 2020 Act, sections 7 – 17); (v) domestic implementing regulations of the three Agreements (sections 8B and 8C, and Parts 1B and 1C of Schedule 2 to the 2018 Act); (vi) financial provisions regarding rights and obligations arising out of the Withdrawal Agreement (section 20 of the 2020 Act); and (vii) any other domestic legislation, which is for the purpose of or otherwise in the scope of the three Agreements (section 7C).
Each of the seven categories has several sub-categories and nuances, as shown in the diagram below, which sets out “relevant separation agreement law” in full. This is a complex web of new laws and labels. I explain each category (and sub-category) in turn below (with expanded images of parts of the web).
Categories 1 – 3: Directly effective provisions of the three Agreements
It is convenient to deal with the first three categories of “relevant separation agreement law” together, namely (i) directly effective provisions of the Withdrawal Agreement (section 7A of the 2018 Act); (ii) directly effective provisions of the EEA EFTA Separation Agreement (section 7B of the 2018 Act); and (iii) directly effective provisions of the Swiss Citizens’ rights Agreement (section 7B of the 2018 Act). The approach taken for each is materially identical.
The three Agreements require that certain provisions of those Agreements (and, in some instances, certain EU laws) should have direct effect in UK domestic law. Article 4(1) and (2) of the UK-EU Withdrawal Agreement, for example, states:
“(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.
Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.”
(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.”
That (and other equivalents in the other two Agreements) means that the Agreements’ provisions – both the Agreements themselves and, by cross reference, certain EU laws – must be directly applicable in the UK, and individuals can rely upon and enforce them in domestic courts. On account of the UK constitution’s dualist nature, it is insufficient just for an international treaty to state this. There needs to be domestic, implementing provisions (see the discussion of conduit pipes in relation to retained EU law here). This is achieved by three conduit pipes found in sections 7A and 7B of the 2018 Act – one for each of the three Agreements (the Withdrawal Agreement in section 7A and the other two Agreements in section 7B). These sections mimic the approach taken in section 2 of the European Communities Act 1972 (the “1972 Act”). They state, for example, that “all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the [Agreements]” and “all such remedies and procedures from time to time provided for by or under the [Agreements]” are “without further enactment to be given legal effect or used in the United Kingdom” (section 7A(1)). Moreover, they confirm, for example, that the “rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned” are to be “recognised and available in domestic law, and enforced, allowed and followed accordingly” (section 7A(2)).
Category 4: Citizens’ rights
The fourth category of “relevant separation agreement law” concerns citizens’ rights. Rather than simply rely upon the general implementation provisions (the first three categories), the legislature has enacted specific provisions to give effect to Part 2 of the Withdrawal Agreement (and corresponding provisions in the EEA EFTA Separation Agreement and Swiss Citizens’ Rights Agreement) in domestic law, namely sections 7 – 17 of the 2020 Act. This category can be split into two sub-categories, namely domestic regulations made under the relevant sections of the 2020 Act and other (amended) domestic legislation.
Space precludes a detailed assessment of these provisions, but, in summary, the 2020 Act legislates for: (i) rights in relation to entry and residence (including: deadlines for applications and temporary protection; rights of frontier workers; restrictions on rights of entry and residence, and retention of existing grounds for deportation; and appeals); (ii) recognition of professional qualifications; (iii) co-ordination of social security systems; (iv) non-discrimination and equal treatment; and (v) monitoring of citizens’ rights through the establishment of an independent monitoring authority (see section 15 and Schedule 2, which give the Independent Monitoring Authority powers to establish an inquiry (paragraph 25 of Schedule 2 to the 2020 Act) and to raise an action for judicial review (paragraphs 29 and 30 of Schedule 2 to the 2020 Act). Relevant citizens’ rights are set out here. For further discussion, see two blog posts by Will Perry here and here.
Category 5: Domestic implementing regulations
The 2020 Act provides for a number of powers for Ministers to produce domestic implementing regulations for parts of the three Agreements (see sections 8B and 8C, and Parts 1B and 1C of Schedule 2 to the 2018 Act). It is convenient to group these secondary legislation powers together (as shown in the diagram below). The first five of these sub-categories are set out in section 8B of the 2018 Act (as modified by the 2020 Act). In essence, a Minister may by regulations make provision for the implementation of the Withdrawal Agreement and the EEA EFTA Separation Agreement, and the supplementation of the other implementations of those Agreements (e.g. sections 7A and 7B as addressed above). The power is wide e.g. regulations “otherwise for the purposes of dealing with matters arising out of, or related to” the Agreements (section 8B (1)(c) and (2)(c))). UK Ministers can also make regulations to “restate” anything that already forms part of domestic law by the sections 7A and 7B conduit pipes “for the purposes of making the law clearer or more accessible” (section 8B(4) and section 8C(5)).
The explanatory notes to the 2020 Act state that these Regulations “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”. It concedes that these category of “relevant separation agreement” will already be recognised and available in domestic law by virtue of sections 7A and 7B of the 2018 Act, but that “[i] n 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.” It states that these “Other Separation Issues” – the subject of this category – cover (i) goods placed on the market; (ii) ongoing customs procedures; (iii) ongoing VAT and Excise Duty matters; (iv) intellectual property; (v) ongoing police and judicial co-operation in criminal matters; (vi) ongoing judicial co-operation in civil and commercial matters; (vii) data and information processed or obtained before the end of the implementation period or on the basis of the Withdrawal Agreement; (viii) ongoing public procurement and similar procedures; (ix) Euratom related issues; (x) Union judicial and administrative procedures; (xi) administrative co-operation procedures; (xii) privileges and immunities; and (xiii) other issues relating to the functioning of the institutions, bodies, offices and agencies of the Union. Not much then…
Regulations made under section 8B cannot, however: (i) impose or increase taxation or fees; (ii) make retrospective provision; (iii) create a relevant criminal offence; (iv) establish a public authority; (v) amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it; or (vi) amend or repeal the devolution statutes (see section 8B(5)).
The sixth and seventh sub-categories are set out in section 8C. It permits Ministers to make regulations in similar terms as above, but this time in connection with the Ireland / Northern Ireland Protocol to the Withdrawal Agreement. There are interesting comparisons to be made between section 8B (regarding the main body of the Withdrawal Agreement) and section BC (regarding the Protocol). Firstly, section 8B(3) states that regulations “may make any provision that could be made by an Act of Parliament” whereas section 8C(2) adds the phrase: “(including modifying this Act)”. It is debateable whether this difference alters the scope of either power. Secondly, the limitations for regulations made pursuant to section 8B, as set out in the previous paragraph above, are not listed in section 8C regarding the Protocol.
The eighth sub-category is set out in Parts 1B and 1C of Schedule 2 to the 2018 Act. These set out corresponding powers for the devolved authorities to implement, within their devolved competences, Part 3 of the Withdrawal Agreement, Part 4 of the EEA EFTA Separation Agreement and the Ireland / Northern Ireland Protocol. These powers can be used for the same purposes as the power set out in sections 8B and 8C and the same restrictions apply.
For the scrutiny procedures of regulations made under section 8B, see Schedule 4 to the 2020 Act.
Category 6: Financial provisions
The Withdrawal Agreement covers the financial settlement regarding the payments the UK has committed to making to the EU, and the payments that the UK will receive from the EU. 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. To allow the UK Government to meet its international commitments set out in the Withdrawal Agreement, the 2020 Act contains in section 20 a legislative mechanism to authorise payment of those financial obligations. This 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.
Category 7: The Catch all
Finally, section 7C(3)(b) of the 2018 Act states that there is a residual, catch-all category of “relevant separation agreement law” for “anything not falling within [the other categories of “relevant separation agreement law”] so far as it is domestic law for the purposes of, or otherwise within the scope of [the three Agreements] as that body of law is added to or otherwise modified by or under [the 2018 Act] or by other domestic law from time to time”. On its face, this is exceptionally broad. It means that other Acts may well fall within the definition of “relevant separation agreement law”. Candidates include those listed in the relevant part of this resource page.
Interpretation of “relevant separation agreement law”
Section 7C(1) of the 2018 Act states that any question as to the “validity, meaning or effect” of any relevant separation agreement law is to be decided in accordance with two rules, namely: (i) in accordance with the terms of the three Agreements and (ii) having regard to the desirability of consistency between the three Agreements.
Relationship between “relevant separation agreement law” and “retained EU law”
I make two observations regarding the relationship between “relevant separation agreement law” (as discussed in this blog post) and “retained EU law” (as discussed in a previous blog post).
First, “relevant separation agreement law” is supreme. The “relevant separation agreement law” flowing from the Withdrawal Agreement, EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement is given supremacy over conflicting domestic law: see section 7A(3) of the 2018 Act. This provides that “every enactment (including an enactment contained in [the 2018 Act]) is to be read and has effect subject to [the rights and liabilities (etc) of the Withdrawal Agreement]”. (Note, also, that “enactment” is defined in section 39 of the 2020 Act and, for the purposes of the Act, means “an enactment whenever passed or made” and therefore captures legislation even if passed after the Act is passed — this raises interesting questions about implied repeal, but one assumes the Act is in any event a constitutional statute and would have required express wording to override in any event).
The reference to the 2018 Act itself in the previous quotation from section 7A(3) is important. This means that relevant separation agreement law trumps other (express) provisions of the Act. The most telling example concerns preliminary references. One would be forgiven for reading section 6(1)(b) (“A court or tribunal cannot refer any matter to the European Court on or after IP completion day”) as an absolute rule without exceptions. However, the totally innocuous and oblique reference to “procedures” in section 7A (the general implementation of the Withdrawal Agreement) completely undoes that insofar as the Withdrawal Agreement grants the CJEU jurisdiction to hear preliminary references from UK courts in certain circumstances (most notably concerning citizens’ rights). See this blog post by Alexandra Littlewood concerning the preliminary references available after the transition period. Section 6 is totally misleading. Preliminary references are dead! Long live preliminary references!
It is no wonder in such circumstances that section 8B of the 2018 Act permits Ministers to make regulations to “restate, for the purposes of making the law clearer or more accessible, anything that forms part of domestic law by virtue of [section 7A and 7B of the 2018 Act]”. This is quite extraordinary. It is a telling – yet tacit – admission by the drafter (or perhaps a plea for help or forgiveness) that all is not necessarily obvious from the face of the legislation itself.
The reference to the 2018 Act within section 7A(3) has a second effect. The supremacy of “relevant separation agreement” also applies equally vis-à-vis “retained EU law” (as defined here). This is confirmed in Section 5(7) of the 2018 Act, which provides that supremacy given to the “retained EU law” over other domestic law does not apply to the domestic statutory provisions which implement the “relevant separation agreement law”. “Relevant separation agreement law” therefore trumps any “retained EU law”.
In terms of the hierarchy amongst the different sources of “relevant separation agreement law”, provisions emanating from the UK-EU Withdrawal Agreement trump those from the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement: compare the wording of sections 7A(3) with 7B(3). We are therefore left with a hierarchy as depicted below:
Second, it is possible for EU law to form part of “retained EU law” for some purposes and have effect as “relevant separation agreement law” for other purposes. This means that after IP Completion Day, references to EU law in domestic legislation can have a dual meaning. Where an EU law is capable of such a dual meaning or usage, see the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020. These Regulations make amendments to Interpretation Act 1978 and Schedule 8 of the 2018 Act. They are not easy provisions to parse. In summary, the effect appears to be that after IP Completion day:
- where there is a dual meaning/usage, the interpretive provisions applicable to references to EU legislation that have effect as relevant separation agreement law will apply to the extent that the EU legislation takes effect as relevant separation agreement law, and the equivalent is true to the extent that the EU legislation takes effect as retained EU law;
- references to EU laws that have effect as relevant separation agreement law are to be interpreted as those instruments are applied and have effect under the terms of the Withdrawal Agreement, EEA EFTA Separation Agreement or Swiss Citizens’ Rights Agreement; and
- that means that relevant separation agreement law can be either ambulatory (where references are to EU legislation that automatically update when the EU legislation is updated, even after the transition period), nor non-ambulatory (where a reference to the version of that legislation is to that legislation as it has effect under the terms of the Withdrawal Agreement/EEA EFTA separation agreement/Swiss Citizens’ Rights Agreement i.e. at a specific point in time). This appears to contrast with retained EU law, which appears to be non-ambulatory vis-à-vis its EU law source.
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