Brexit: UK legislation: recent developments

European Union (Future Relationship) Act 2020

The European Union (Future Relationship) Act 2020 received Royal Assent on 30 December 2020. This Act implements the Trade and Cooperation Agreement (TCA), the Agreement on Nuclear Cooperation and the Agreement on Security Procedures for Exchanging and Protecting Classified Information, as agreed between the UK and the EU. Certain provisions came into force when the Act was published and other provisions will be brought into force by future Regulations.

The European Union (Future Relationship) Act 2020 (Commencement No. 1) Regulations 2020 have also been published. These are the first commencement regulations under the TCA and bring certain provisions into force either at the end of the transition period or on 1 March 2021.

EU (Withdrawal) Act 2018

On 13 July 2017 the Repeal Bill - then called the European Union (Withdrawal) Bill - was introduced into the House of Commons. The EU (Withdrawal) Bill received Royal Assent on 26 June 2018 becoming the European Union (Withdrawal) Act 2018 (the EUWA).  The EUWA establishes the legislative framework for the UK's withdrawal from the EU on exit day.

The EUWA:

• repeals the European Communities Act 1972 on exit day
• converts EU law as it stands at the moment of exit into UK law before the UK leaves the EU, so that the first day following exit does not place the UK in a legal vacuum
• gives ministers powers to make secondary legislation, including temporary powers to allow corrections to be made to laws that would otherwise no longer operate appropriately once the UK has left the EU
• gives the UK Parliament the right to approve the Brexit deal, and
• deals with the scope of devolved decision-making powers.

On 30 October 2019, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019 were made. These regulations amend the definition of exit day in the EUWA for the third time. Exit day is now defined as 11.00 pm on 31 January 2020.

The government has been using the powers in the EUWA to amend primary and secondary legislation so that this functions properly on and after exit day and has published numerous Brexit-related Statutory Instruments.

The European Union (Withdrawal Agreement) Act 2020

The European Union (Withdrawal Agreement) Act 2020 (WAA) is the UK legislation that gives effect in domestic law to the Withdrawal Agreement which sets out how the UK will leave the EU at the end of the transition period. The WAA received Royal Assent on 23 January 2020 and the government has now ratified the Withdrawal Agreement, which is an international treaty. The Withdrawal Agreement was also approved by the EU Parliament on 29 January 2020.

The WAA includes amendments to the EUWA to:

• enable most EU law to continue to apply in the UK during the transition period, by saving the effect of most of the European Communities Act 1972 (ECA 1972) in modified form
• enable EU-related terms in UK legislation to operate effectively during the transition period, by setting out rules about how various references (such as to the EU, the EEA or member state) are to be read
• ensure certain EUWA provisions will take effect at the end of the transition period, instead of on exit day, such as the creation of the new body of retained EU law
• mimic the ECA 1972 mechanism through which rights and obligations arising under EU law currently flow into UK law. The intention is for the Withdrawal Agreement, and the provisions of EU law applied by the Withdrawal Agreement, to have the same legal effects in UK law that are currently attached to EU law while the UK is a member state. (This is separate from the ECA 1972 savings during the transition period.) The effects would continue after the end of the transition period, to the extent required by the Withdrawal Agreement

The WAA allows for the mass deferral of the effects of no-deal statutory instruments (SIs) made before exit day so that UK law does not diverge from EU law during the transition period. These SIs will come into force by reference to an "IP completion day" (defined to match the end of the transition period) instead of by reference to exit day.

UK Internal Market Act 2020

On 9 September 2020, the UK government published the UK Internal Markets Bill which addresses the possibility that different parts of the UK may in future make different rules in key policy areas from 1 January 2021. Following agreement by both Houses on the text of the Bill, it received Royal Assent on 17 December 2020 and is now the United Kingdom Internal Market Act 2020.

The end of the transition period means that the EU's internal rules that create a single market for goods and services has ceased to apply in the UK. This legislation preserves the free flow of goods and services between the four UK nations. In broad terms, this creates principles of:

• mutual recognition between the different UK nations, to ensure the devolved administrations can set their own rules and standards, but still trade with businesses across the UK; and
• non-discrimination, to ensure a level playing field for companies trading in the UK.

Controversially, the Bill created powers for the UK Government to override provisions contained in the Withdrawal Agreement's Protocol on Ireland / Northern Ireland ("NI Protocol") and part of the Withdrawal Agreement. The EU stated that the Bill was in breach of international law and requested that the UK withdraw the Bill. On 1 October 2020, the President of the European Commission, Ursula von der Leyen, announced that the EU had issued the UK with a formal notice to initiate infringement proceedings against the UK for breach of the Withdrawal Agreement. See Brexit update: EU-UK infringement proceedings for more information. On 8 December 2020, the co-chairs of the joint UK-EU committee announced their agreement in principle on all issues, in particular with regard to the Northern Ireland Protocol. In view of this agreement in principle, the UK government announced that it would withdraw these controversial provisions from the Bill.

On 21 December 2020, the United Kingdom Internal Market Act 2020 (Commencement No 1) Regulations 2020 (SI 2020/1621) were made. These Regulations brought into force, on IP completion day (that is, the end of the transition period), the majority of the Act's provisions. The principal exceptions are the provisions dealing with reporting, information gathering, enforcement and penalties.

Other Bills/Acts

There are also other bills and acts relating to the customs regime, trade policy, immigration, fisheries, agriculture, nuclear safeguards and international sanctions.

Customs regime

The Taxation (Cross-border Trade) Bill received Royal Assent on 13 September 2020 and became The Taxation (Cross-border Trade) Act 2018. This Act provides the framework for a new standalone customs regime.

Trade policy

The Trade Act 2021 received Royal Assent on 29 April 2021. The Act includes provision for the implementation of the WTO Government Procurement Agreement and continuity trade agreements, the establishment of the Trade Remedies Authority, and placing the Trade and Agriculture Commission on a statutory footing.

Nuclear safeguards

The Nuclear Safeguards Bill received Royal Assent on 26 June 2018 and became the Nuclear Safeguards Act 2018. The Act will bolster the roles and responsibilities of the UK’s nuclear regulator, the Office for Nuclear Regulation (ONR), once the UK leaves Euratom.

International sanctions

The Sanctions and Anti-Money Laundering Bill has been agreed to by both Houses and it received Royal Assent on 23 May. The Bill is now the Sanctions and Anti-Money Laundering Act 2018. The Act gives the UK the necessary legal powers to continue to implement sanctions post-Brexit, including maintaining existing sanctions regimes currently imposed through EU law, and providing the necessary legal underpinning for the UK to decide when and how to take action against new threats.

Agriculture

A new Agriculture Bill 2019-2020 was introduced to Parliament on 16 January 2020 and became the Agriculture Act 2020 on 11 November 2020.