The new EU (Withdrawal Agreement) Bill: What’s changed?

The Government announced its intentions to introduce a European Union (Withdrawal Agreement) Bill in the Queen’s Speech on 19 December 2019. This Bill is needed to enable the UK to leave the European Union with a deal on 31 January 2020. 

This Insight will set out the background to the Bill. It will also identify the key differences between this Bill and an earlier European Union (Withdrawal Agreement) Bill introduced to Parliament in October 2019. 

The October Bill 

In October 2019, the UK Government introduced the long-awaited EU (Withdrawal Agreement) Bill (‘the October WAB’). The October WAB would have ratified and implemented the UK’s EU Withdrawal Agreement. To that end, it would have underpinned a package of domestic constitutional reforms in light of the UK’s withdrawal from the European Union. 

Although that Bill received a Second Reading in October 2019, its programme motion was defeated. In part this was because of concerns about the speed at which the Government proposed to progress the Bill through the House of Commons. The October WAB fell when Parliament dissolved for the 12 December 2019 General Election. 

The Government secured a working majority in that General Election. It then reintroduced the EU (Withdrawal Agreement) Bill in the House of Commons on Thursday 19 December 2019. The Bill is expected to have a debate on its second reading on Friday 20 December 2019. 

Unchanged features of the Bill 

The December WAB is similar in many respects to its predecessor, sharing most of the key clauses and Schedules of that Bill. This is unsurprising, given that its core objective – to ratify and implement the Withdrawal Agreement between the UK and the EU – is unchanged.

As we explained in October, the WAB still:

  • removes domestic obstacles to ratifying the Withdrawal Agreement by repealing section 13 of the EU (Withdrawal) Act 2018 (EUWA) and disapplying Part 2 of the Constitutional Reform and Governance Act 2010 with regard to the Withdrawal Agreement; 
  • implements the transition or implementation period by preserving the effect of key elements of the European Communities Act 1972 (ECA);
  • confers a special domestic legal status on the Withdrawal Agreement after transition by requiring relevant provisions to be directly applicable in UK law and requiring domestic laws to be read subject to the Withdrawal Agreement;
  • provides extensive delegated powers to Ministers and devolved authorities to deal with “separation issues” and the Protocol on Ireland/Northern Ireland; and 
  • provides a range of delegated powers and domestic arrangements to implement the Citizens’ Rights provisions of the Withdrawal Agreement. 

Major changes to the Bill 

Some major changes have been made between the original October WAB and the newly introduced December WAB. In an initial assessment we have been able to identify several key differences. However, this should not be taken as a definitive account of the changes that have been made to the text of the Bill. 

What has been removed from the WAB? 

Three clauses and one Schedule have been removed outright from the original October WAB. These were the clauses: 

  • giving MPs a veto over any Minister agreeing to an extension of the transition or implementation period in the Joint Committee (what was clause 30); 
  • giving MPs a veto over the start of future relationship negotiations with the EU, an approval role in relation to the Government’s negotiating mandate, and an enhanced Parliamentary approval process for any future relationship treaty subsequently negotiated with the EU (what was clause 31); and 
  • providing additional procedural protections for workers’ rights that currently form part of EU law, but which would not be protected against modification, repeal or revocation in domestic law once the transition or implementation period has ended (what was clause 34 and Schedule 4). 

What has been added to the WAB? 

There are five clauses that have been added to the WAB that were not present in the original October WAB. These relate to: 

  • reporting requirements to Parliament where the Joint Committee’s dispute procedures are used (new clause 30); 
  • prohibiting any UK Minister from agreeing to an extension of the transition or implementation period in the Joint Committee (new clause 33); 
  • prohibiting UK Ministers from using the written procedure to take decisions in the Joint Committee (new clause 35); 
  • the repeal of statutory provisions the Government maintains are now unnecessary or spent (new clause 36); and 
  • removing (via clause 37) the Government’s existing obligations (under section 17 of the EUWA) with regard to unaccompanied children seeking asylum in the EU who have family members in the UK. This would be replaced with a duty to make a policy statement to Parliament within 2 months of the Act passing. 

What has been modified in the WAB? 

The following may not be exhaustive, but an initial review of the December version of the WAB suggests the following changes to other clauses: 

  • Clause 20(7) in the October WAB would have allowed a Minister of the Crown to extend the life of the standing service provision (under which the UK would make financial payments to the EU) beyond March 2021. The Government has removed the power to extend that provision in the current version of the Bill. 
  • Clause 26 has a new subsection (1). This provision allows Ministers, by regulations, to specify the circumstances in which lower courts could depart from the rulings of the Court of Justice of the European Union (CJEU) after the transition or implementation period. Without this new provision, lower courts would have had to follow the UK Supreme Court’s rulings (and the High Court of Justiciary’s rulings in Scotland) on retained EU law, but otherwise would have to follow CJEU rulings unless and until the substance of domestic law changed or those higher courts had departed from the rulings of the CJEU. 
  • Clause 29 provided a role for the House of Commons’ European Scrutiny Committee in relation to developments in EU law of “vital national interest” to the UK during the transition or implementation period. However, the October WAB made no provision for the House of Lords in this regard. New subsections 3-4 in the December WAB give an equivalent role to the European Union Committee of the House of Lords. 
  • Paragraph 10 of Schedule 2 previously would have prohibited the Independent Monitoring Authority from delegating certain of its functions to a committee, member or employee. Two functions that were prohibited in the October version of the WAB, but which are not in the December version, concern decisions to carry out inquiries or to intervene in legal proceedings. New paragraph 39 would also make it possible to transfer the functions of the IMA to another public body by regulations. 

What resources can I use to find out more about the WAB? 

When the October WAB was introduced, the House of Commons Library produced a series of Insights and briefings papers. These explained some of the more important parts of the WAB. These remain a useful starting point for those wishing to understand the Bill and what it seeks to achieve. However, they do not provide a definitive guide for the current Bill, and care should be taken as in several key areas the provisions have changed significantly.


About the author: Graeme Cowie is a Senior Library Clerk at the House of Commons Library, specialising in Brexit.