Withdrawal Agreement, Devolution, and Current Disputes (L25) Flashcards
When the Withdrawal Act was being enacted, it was necessary to determine what effect this would have on the competence of the Scottish Parliament.
Proposal: SP stopped from legislating in a way which would modify retained EU law.
Rule: cannot modify retained EU law if modification ‘is of a description specified in regulations’ made by UKGov.
- Regulations must be approved by both HoC and HoL.
- SP can vote to agree or not agree, but refusal to agree doesn’t prevent the regulations being made.
What happened with the Continuity Bill and later the Act?
Bill referred to UKSC: [2018] UKSC 64.
- Held to be mostly outwith competence of SP.
More limited version enacted: UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.
Secondary legislative powers to keep pace with changing EU law post-Brexit. Limited by rules on devolved competence.
Requires policy statement on use of powers and annual report on what has been done with them.
What are the key provision of the Withdrawal Agreement?
Signed January 24th 2020. In force January 31st.
Key provisions:
- Transition period (extendable). Finished end of 2020.
- Protection of rights of EU citizens resident in UK or who arrive before end of transition period. Results in creation of ‘EU settlement scheme’ and categories of ‘settled status’ and ‘pre-settled status’.
- Oversight of implementation by Joint Committee, to which either party can refer matters. Disputes referred to arbitral panel chosen from members nominated by each. Where EU law is at issue, must refer to Court of Justice for interpretation.
What is the Northern Ireland Protocol?
Original draft included ‘Northern Irish backstop’ - UK would remain in Customs Union and NI in single market until some other solution was found preventing a ‘hard border’.
NI leaves Customs Union as a matter of law but tariffs on goods travelling GB->NI which are ‘at risk’ of entering EU (not NI->GB).
Would enter EU via Ireland.
State aids rules - regarding public subsidies and similar - apply to UK as a whole where measures affect trade between NI and EU.
What is Article 16 of the Northern Ireland Protocol?
Safeguards:
If application of protocol leads to serious economic, societal or environmental difficulties, UK or EU may unilaterally take appropriate safeguard measures (1).
If a safeguard in accordance with (1) creates an imbalance between the rights and obligations under this protocol, the UK or EU may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance (2).
NOTE: very slim application, more limited than political commentary suggests.
What is the dispute surrounding the Northern Ireland Protocol?
The DUP refuses to participate in devolved government in NI until Protocol is brought to an end.
Case before UKSC argues that it is incompatible with the Acts of Union 1800 and Northern Ireland Act 1998.
UKGov says Protocol is not working. A Bill before Parliament aims to ‘fix’ it. Not using A16 procedure: claims that unilateral override of Protocol is lawful under international law.
Ongoing attempts at reworking Protocol: symbolic deadline of April 10th 2023 (the 25th anniversary of Belfast (Good Friday) Agreement).
What is the status of the Withdrawal Agreement?
(s(7A)) The WA is to have the same status in the domestic legal system as EU law used to have via ECA 1972 (s2).
Direct effect applies. Supremacy applies.
The Sovereignty Clause: s38.
- Sovereignty subsists notwithstanding retained EU law by virtue of EU(W)A18.
What is the Trade and Cooperation Agreement?
Signed on December 30th 2020. Applied provisionally since then.
Primarily a free trade agreement: no tariffs or quotas on goods but (very complex) rules of origin apply.
- No general access to markets in services.
- No free movement of persons. Limited visa-free travel.
- UK leaves Common Fisheries Policy - EU quotas of fish in UK waters shrink for 5 years then will be subject to annual negotiation.
- Overseen by Partnership Council with possibility of arbitration in case of disputes.
Not directly effective; no supremacy in domestic law.
What are the ‘level playing field’ rules in the Trade and Cooperation Agreement?
Applies e.g. to subsidies and ‘to labour and social levels of protection’.
Parties shall not ‘weaken or reduce, in a manner affecting trade or investment [between them], its labour and social levels of protection below the levels in place at the end of the transition period, including by failing to effectively enforce its law and standards.’
If they do the other ‘may take appropriate rebalancing measures to address the situation’ though these must be ‘restricted with respect to their scope and duration to what is strictly necessary and proportionate in order to remedy the situation.’
What is the Retained EU Law (Revocation and Reform) Bill?
Currently before Parliament.
Sunset provision: retained EU law (other than primary legislation) revoked automatically at the end of 2023. Some REUL can be extended to the end of 2026.
ECA s2(1) repealed.
Certain things not revoked. Others can be exempted from the revocation by UK and devolved governments.
Everything not revoked becomes ‘assimilated law’.
REUL no longer generally supreme over pre-Brexit law.
Significant secondary legislative powers to restate/revoke/replace retained EU law. Mostly using negative procedure.
