Section 38 of the European Union (Withdrawal Agreement) Act 2020

The European Union (Withdrawal Agreement) Act 2020 (c. 1) is an Act of the Parliament of the United Kingdom that provides for the ratification of the Brexit Withdrawal Agreement and its transposition into the domestic law of the United Kingdom. It is the most important constitutional law passed by the Johnson government`s Parliament. The Withdrawal Agreement was the result of the Brexit negotiations. [1] Section 26, as introduced in December, differed from the October 2019 version of the ACM. The new paragraph 26(1) amends Article 6 of the EU Withdrawal Act 2018. Government ministers could decide by regulation whether, when and how the UK`s subordinate courts should depart from the retained case law of the Court of Justice of the European Union (CJEU) (when interpreting retained EU law) after the transition or implementation period. This provision drew criticism because it was unclear how this power would be used and how it would affect the internal hierarchy of British courts. Enter clause 45 of the bill. It requires that clauses 42 and 43 (and the provisions made therein) be effective notwithstanding any incompatibility or inconsistency with international agreements or national law and that not all provisions are unlawful as a result of these inconsistencies.

What is even more explosive, however, is that the effect created by Section 7A to bring the Withdrawal Agreement into force no longer has any effect in relation to the inconsistent and inconsistent provisions of the bill referred to in Section 45. And in a reversal of the normal rule that laws are interpreted in accordance with international obligations, Clause 45(2)(c) rather states that the interpretation of the Withdrawal Agreement should not be inconsistent or inconsistent with Clause 45. The WAB is not a monetary law as it contains a number of measures that deal with non-monetary issues. In practice, the government cannot wait a year to adopt the MCC, as the Article 50 deadline is 31 January 2020 for ratification of the Withdrawal Agreement. There is a circularity for the design of the 2018 law (as amended). Section 7A clearly seeks to ensure that the provisions of the Withdrawal Agreement are enforceable in the UK courts. Once created by law, this effect does not depend on other decrees of the British Parliament. In addition, Article 7A(3) clearly provides that future orders – and this would include a UK Internal Market Act – are to be interpreted in accordance with the obligation to give domestic legal effect to the Withdrawal Agreement.

And yet, this intention is limited by an affirmation of the sovereignty of the British Parliament in Article 38. Lord Beith`s amendment would prevent subordinate courts from departing from the CJEU`s case law (restoring the original position of Section 6 of the EU Withdrawal Act 2018). All of this brings us to the heart of the legal issue. Does the sovereignty provision of Article 38 allow the UK Parliament to legislate that would restrict the direct effect and application of the Withdrawal Agreement (and its full Protocol on Ireland/Northern Ireland), or would such legislation not be applied by a UK court under Article 7A pursuant to Article 4 of the Withdrawal Agreement? On Wednesday, January 22, 2020, the House of Commons will consider amendments to Bill 2019-21 on Amendments to the House of Lords of the European Union (Withdrawal Agreement). This bill completed its phase in the House of Commons on January 9 and was introduced in December 2019. An earlier version of the bill, introduced in October 2019 in the previous legislature, was dissolved before the 2019 parliamentary elections. The bill was reintroduced immediately after the general election and was the first bill to be introduced in the House of Commons in the first session of the 58th general election. Parliament[5] was introduced by the re-elected government with amendments to the previous bill and was read for the first time on 19 December, immediately after the first reading of the Law on Anarchy Act and before the start of the debate on the Queen`s Speech. The second reading took place on 20 December and the third on 9 January 2020. This law received Royal Assent on January 23, 2020, nine days before the United Kingdom`s withdrawal from the European Union. Another provision requires special attention. Section 38 of the European Union (Withdrawal Agreement) Act 2020 reaffirms the sovereignty of the UK Parliament.

In particular, Article 38(2)(.b) invokes the sovereignty of the Parliament, notwithstanding Article 7a. As EU and UK negotiators meet in London at the start of the next crucial round of negotiations on an EU-UK trade deal, Britain`s The Telegraph newspaper – under the surprising headline Brexit Deal Never Made Sense, Boris Johnson to Tell EU – has announced that the withdrawal agreement already reached with the EU is considered “legally ambiguous” by the Johnson government. The voice of the Eurosceptic wing of Boris Johnson`s Conservative Party, the European Research Group, has proposed that the withdrawal agreement be completely scrapped if no trade deal with the EU is reached. While influential members of the Prime Minister`s own party remind him that the European Union (Withdrawal Agreement) Act 2020 – which gives legal effect to the Withdrawal Agreement – contains a provision affirming Parliament`s sovereignty, there seems to be a growing sense that the UK can somehow rewrite or amend the Withdrawal Agreement through national legislation. Article 7A adopts the wording of the European Communities Act 1972 (which gave EU law internal effect during accession) so that the directly effective provisions of the Withdrawal Agreement are available and enforceable under the law and without further enactment. It is important to note that Article 7A(3) – and always using the same type of legal instrument to ensure the primacy of Union law during accession to the Union – provides that any decree (including a decree contained in law) must be interpreted taking into account the need to implement and enforce directly effective provisions. This instrument is intended to protect against tacit repeal by conflicting legislation, but leaves open an explicit repeal by a subsequent law. The alternative argument is that, in order to be protected by Article 38, the rules of the United Kingdom`s internal market would have to be expressed in their intention to legislate contrary to Article 7A. More subtle wording would risk using subsection 7A(3) to interpret any inconsistencies. However, the clearer the change in the direct effect and application of the Withdrawal Agreement, the more obvious its incompatibility with the Agreement could become, leading to dispute settlement by the Joint Committee.

However, the fly in the ointment is included in Article 38 of the 2020 law. The so-called “sovereignty clause” requires that Articles 7A to 7C be understood as not deviating from the sovereignty of Parliament. .