 So welcome everybody to the first in this new series of webinars being organized jointly between mountain chambers and the Faculty of Law at the University of Cambridge. I'm Kenneth Armstrong, I'm Professor of European Law at Cambridge and I'll be chairing today's event. Now this initiative has grown from the work that Jack Williams has done in launching EU relations law as a field of study. And that includes the EU relations law blog that he edits and where you'll find detailed legal analysis of many of the issues we hope to cover in these webinars and Jack will be kicking things off in a moment. Now today we are introducing the concept of EU relations law in the webinars and in the webinars that will follow, we will explore issues relating to enforcement, to dispute resolution to internal and external trade issues, and also some competition aspects as well. So today we are joined by two lawyers with huge reputations in the field, George Peretz QC from Moncton will explore some key issues around the withdrawal agreement and Northern Ireland protocol, and my Cambridge colleague Professor Allison young will highlight significant aspects of the UK's Brexit legislation. And I'll say something at the end about the future relationship. Now we have a Q&A function for these webinars where you can put in some questions that we hope to try and get back to towards the end of the webinar. But let me first of all hand over to Jack Williams, who's going to frame today's discussion. So over to you Jack. Thank you, Kenneth. The UK's withdrawal from the EU amounts to obviously a seismic legal transformation. There's new and a very complex legal ecosystem developing with new sources of law, new substantive law itself, and new institutions and enforcement bodies. The new ecosystem draws on EU law, international law and domestic law. So in my first 10 minutes or so, I'm going to outline the framework of this new body of law that we call EU relations law concerning the UK's new relationship with the EU. In doing so, I shall hope to introduce the series as a whole, which is in five parts, as Kenneth has said, and is designed to be a mini course in setting out this new actual law. And within these 10 minutes I'll reference what future sessions are going to cover. So let's begin by setting this all out in context as to where we stand at this moment in time. As such of law, Brexit has actually already happened on the 31st of January this year. That's the definition of exit day within the EU withdrawal act. Now it may not feel like we've left of course, because we're in transition or implementation period. The withdrawal agreement at the level calls it a transition phase, the domestic legislation calls it an implementation period. It's the same thing, and to oversimplify massively, it's meant as you were before, as an EU member states. This is the first webinar series and for EU relations law as a whole. What we're really interested in is the implementation period completion date, which is quite a mouthful so IP completion date the short. Now section 39 of the EU withdrawal agreement act 2020 defines this as 11pm on the 31st of December this year. On IP completion date as a matter of law. This is when the transition period finally ends, and a number of things are at least meant to happen to commence what we'll be calling EU relations law. It's finally time to get our heads around the new law after a couple of years of major changes and policy announcement, but let's try and get our heads around the law as it's rather a seismic change as I've alluded to. Let's begin by surveying that new law that's going to change on the 1st of January that we'll all need to know about, and we will discuss in this series. There are four components of what we're calling EU relations law. First of all, you have the retention level. Secondly, you have the withdrawal agreement aspects. Thirdly, any new relationship if we manage a deal, and finally internal affairs. So one of those in turn, the retention aspect of EU withdrawal, EU withdrawal relations law is the provisions of the EU withdrawal agreement act. That's essentially pulling in all of that previous EU law, converting it into domestic law, and then domestic end it and reapply it. Now a nerdy side note here paragraph one of schedule five of the EU withdrawal agreement act 2020 provides any references in the delegated legislation that's amending the EU law will come into force on exit day. And all of those references to exit day are to be read instead as withdraw references to IP completion date. So that's why the key date on the previous slide is this IP completion date at the end of the year, even if you read in some of the regulations exit day. Now secondly, the withdrawal agreement aspects, we obviously have a number of new substantive provisions of the withdrawal agreements that's going to apply. And I want to emphasize here that it's not just divorce and transition. As George is going to explain later in this webinar, there's a number of other substantive aspects which are going to apply and bite for a number of years in the future. The third component is a new free trade agreement, if we get one, and Kenneth at the end of this seminar is going to address where up to now. And then on the second December in our fourth session, chaired by Philip Moser QC, Catherine Barnard and others are going to look at what's hopefully agreed by then, and any new substantive provisions. And finally, the fourth component of the relations law is utilizing our new found sovereignty in relation to internal affairs, such as the internal market. Now as I say, this is all meant to happen on IP completion date. But as you'll see, I've put a possible gap for a mini transition period, because I think it might well be fun. There's simply in my view too much law to write and to implement if we agree any free trade agreement which we haven't done yet in far too short a period of time. So what I guess will happen at this stage is that IP completion date, which is defined in primary legislation, and therefore I think requires primary legislation to amend it will go ahead and will happen. But I think there'll be some sort of fudge in terms of a new roll over agreement. So we basically have time to sort ourselves out. So going back to this slide, this framework of the four components is underpinned by international agreements and brought together by new institutions. And next week, we're going to look more at those new institutions dispute settlement and enforcement. For example, there's a joint committee between the EU and UK, and there are significant new roles for the competition and markets authority. And in webinar five and early December, we'll look at the role of the CMA and level playing field agreements. So looking at each of those four components in turn, it's really important to know which you're looking at what you're trying to achieve, and what the ultimate source of law is. Now that's because there are two levels. There's the international law level and the domestic law level. So firstly you have to look at what is the substantive law at the international level, and then secondly how it's incorporated into domestic law. The retention aspect. As I say, this is a substantive provisions of old EU law that's going to apply to us as it did to us when we were a member state, and we're simply copying it across into domestic law, so that essentially in all the myriad areas of EU law that regulated us for the past 40 odd years, we essentially copy that into domestic law and tweak it. So looking at the international level, you have to work out what's the EU law that you're trying to apply. Now here, sections two to four of the 2018 EU withdrawal act, tell us that it's a snapshot of EU law as it existed immediately prior to IPC day. So it's not just all EU law going forward. In domestic law, you broadly have the 2018 act, which brings all this law into UK law and calls it retained EU law. And Allison in this seminar is going to walk us through the complexity of what different types of EU retained law there actually are. And next week we'll have a session on retain case law. This is also a third level at the domestic stage in that you have a myriad of domestic regulations, which are mend and correct alleged deficiencies. Now supposedly, this is the idea of tweaking phrases in EU legislation, such as EU and the internal market, and making them apply at the domestic level, but I have a sneaky suspicion quite a lot of policy choices and substantive changes are being made to. Now, at the end of the day, post IPC day, so the implementation completion date. This isn't any anymore EU law. I've seen a number of people suggest that we can simply call the new area of law as EU law in the UK. But for three reasons that's not really what's happening. Firstly, it's only a snapshot of EU law as it was immediately before the end of the transition period. Secondly, and as Allison would explain, this new law, the retained law has different effects in terms of the implications. So supremacy questions of validity and remedies or alter from what it would have been the case if it was just EU law, for example, no rank of its damages claims. And thirdly, a lot of this law is going to change in substance. As I've already said, a number of the Brexit si is the statutory instruments and regulations are going to apply from the first of January next year, it's going to alter a lot of that law. But over time the UK is going to exercise its sovereignty and alter a lot of the substance of that law as well. So I think as students, academics and practitioners, we're going to re conceptualize and remarket this as a distinct area of law separate from EU law proper there internal markets and instead look at our new relationship with the EU, EU relations law. Now the second component of this is the withdrawal agreement aspects. The EU relations law is not just retained EU law. There are new substantive provisions that we have from the withdrawal agreement and the Northern Ireland protocol. Now I noted this stage you can't just look at the withdrawal agreement itself, because there's been at least one joint committee decision, number one on the 12th of June 2020 that amended the withdrawal agreement. There are a number of small deficiencies, and that's altered some substantive provisions in the agreement. So at the international level you have to look at a number of different sources. And as I've emphasized and George is going to elaborate on, it's not just about the divorce and transition arrangements, but there are a number of substantive provisions that apply for years to come. And of course there's dispute settlement at the international level to that we're going to look at in depth next week, the EU is already suing or threatening to sue UK. And at the domestic level, this is implemented by the EU withdrawal agreement act the EU, wow. And you really do want to cry by the end of reading this because not only does it introduce new substantive provisions itself, but it also amends the 2018 act. And Allison is going to talk us through how those two acts together bring in these new sources of law from the withdrawal agreement and the old EU law. And again, I flag that there is considerable amount of delegated powers for delegated legislation for ministers to be changing the law substantively and implementing all of these arrangements via secondary legislation. And I'm going to touch upon the difficulties with that later. And thirdly, I can take this briefly because what's going to happen is an extent, essentially a parallel for the third source of law, hopefully a free trade agreement. And Catherine Catherine Barnard is going to explore that in December, the substantive provisions if and when we get one. We thought it'd be far too premature now when we were organizing this back in July. And thankfully we've been proved right. So in seven or four, we're going to look at how Parliament implements free trade agreements, and Jerry for China QC of Moncton is going to talk about how the domestic level that new free trade agreement, if there is one is implemented. Now I pause there at this stage because you'll notice for all three of these vertical levels. So all three sources. There's a whole lot of delegated secondary legislation. So from an institutional perspective, this is deeply worrying. You've got a number of Henry the eighth powers, I ministers by statutory instruments or secretary legislation, having the powers to override prime legislation and make a whole heap of new substantive law. But I actually think we should start calling most of these King Charles the first powers, because they're really Henry the eighth powers on steroids. And as we've seen in the internal market bill at least, not only are they Henry the eighth powers and having ministers to change the law, but they then oust or potentially oust judicial review or any scrutiny of these this ministerial law. So I think we should start thinking about them as King Charles the first powers. Now I say perceived of caution when you're looking at that bottom level of the domestic regulations, because what's happening is there are three sorts of regulations. First of all, you have the deficiency correction ones, the ones that amend the retained you law on day one, now a new world. So the first of January, and they changed references to you law. Now these as they've been published were originally designed for a complete no deal. And at the time many of them were made that was prior to the withdrawal agreement. So then what's happened is you have to look at number twos, you have to look at regulations which amend the number one regulations, because what's happened is there have been a number of amendments to draw bring in the withdrawal agreement changes and make amendments in light of the withdrawal agreement. So I guess there's then going to be a third level of a third regulation changing the previous two, if and when there's a free trade agreement to bring in that level of international law into domestic law too. And there's a case study for the competition law s eyes which I thought really demonstrated and brought this to life. So I had the number one amendments back in 2019 which brought in to affect the different treaty articles. But then there was a second regulation which amended the first one, because there were a number of gaps which it had to correct and fill in. And then last week there was another one which brought into effect new functions for the CMA in light of the withdrawal agreement functions. And so I assume they'll be a fair form. Now moving on quickly, the final strand of EU relations law is the internal affairs. There's nothing at the international law per se, but of course you're going to have to look at what we've actually signed up to cough unless you want to allow specific measures in these days. Now a good example is data protection, because we may well have our own data protection law, but we're wanting adequacy decision from me from the EU, so that we can transfer data. So you've got to look at what we've signed up to, before you can say what we can regulate a domestic law. And you'll see from the list that there's a huge amount of acts and domestic law which need passing. And I personally have no idea how we're going to get all the legislation done within a couple of weeks. Of course there is the devolved legislation which we're going to deal with in a later webinar. So for those who prefer words rather than text when I send the slides around there the essential questions you have to look at in this process post the first of January to work out what the actual law is. And this is, as I've said at the outset, really a new area of law that we're going to have to all get our heads around as academic students and practitioners, and we've set up a new blog, e-relationslaw.com, which hopefully deals with all this. Thank you. Thanks very much Jack indeed, that was really, really helpful. So what we want to now try and do is explore some of those different strands in a little bit more detail. George Peretz is going to now tell us a little bit more some of the key things we need to know about the withdrawal agreement the Northern Ireland protocol as a source of law. So over to you George. And George, you may need to unmute yourself. Right, I'm going to cover what the withdrawal agreement is. So questions about its status, its structure, how it fits into the legal orders of the UK and the EU, although Allison's going to talk more about the, how it fits into UK structure and then say something about the Northern Ireland protocol. I'm not going to try and cover the citizens rights provisions or the question in any detail, I just don't have time. And a dispute resolution is going to be dealt with next week. So I won't say anything about that. What is it? Well, most obviously it's an international agreement treaty between the European Union and the UK. It's not technically subject to the Vienna Convention on the law of treatise because that convention doesn't apply to treatise with international entities that are not states. But it's well accepted accepted by the European Court of Justice case called RACA that the most of the rules of the Vienna Convention are rules of customary international law that applied to treatise concluded by the EU. The agreement is not the legal basis of or a precondition for the United Kingdom's exit from the EU that happened automatically at the end of the article 50 period as extended. What the withdrawal agreement is, is a way of facilitating an orderly withdrawal of the UK. And the legal basis for that on the EU side is contained in article, article 50. As far as the legal basis for ratification of the domestic orders of the two sides is concerned the United Kingdom that's that's easy the crown prerogative gives the crown the right to conclude treatise. And it has been implemented into domestic law which is necessary for ratification by the EU withdrawal act 2020 as Jack said, and I was going to develop. I said on the EU side the basis is article 50. Some question marks about that, which one might just sort of note. The most perhaps important question mark is whether article 50 covers an agreement which is in effect permanent as the Northern Ireland protocol appears to be subject to some possibilities of early termination. The Northern Ireland protocol is permanent. And indeed the rest of the withdrawal agreement is permanent, although much of it will sort of naturally cease to have much effect because it will cease to bite on real situations as time passes. So the withdrawal agreement as law in the domestic orders of the two sides. The United Kingdom was required by article four of the agreement to give the agreement the same status as EU treatise having EU member states. And that is done by section seven a of the EU withdrawal act 2018, as inserted by the 2020 act and again Alice will say something about that and of course that is now subject to potentially the introduction of the internal market bill about which I don't propose to say anything very much. But we've maybe raised in questions. On the EU side there's nothing in the withdrawal agreement that deals in terms with the effect of the agreement in the EU legal order, but it seems clear that it forms part of the EU legal order and binds EU institutions and member states directly has direct effect. So as long as the, I still touch on the question of permanence how long does it last. Much of the withdrawal agreement will slowly lose effect naturally over time. The citizens rights provisions will slowly become less important as the subject matter of those provisions will also move on to a better world. The provisions relating to money will slowly become less relevant as the money is paid, and the votes, what are called the separation provisions or the run off provisions dealing with all sorts of transitional questions about what happens to things that are halfway through the transition period at the point of the end of the transition period. Again, that will sort of cease to be relevant as time passes. There is no general termination provision in the withdrawal agreement. There is a termination provision in relation to the protocol article 18. And that provides that articles five to 10 of the protocol which is main parts of the protocol that have any effect will cease to apply. In two years or after a subsequent four or eight year period after that initial period, democratic consent in Northern Ireland to the continuance of the protocol is refused. And I would also note article 13, eight of the protocol, which adverts to possible supercession of the protocol by any subject. It's not any subsequent UK EU agreement. It's not necessary because it sort of goes without saying that a subsequent agreement between the parties could amend the protocol but it was felt important I think to record that fairly sort of obvious proposition in a formal way. There's no formal provision in the new provision that withdrawal act for termination, and indeed the structure of the citizens rights provisions the financial provisions suggest that it's clearly intended to last until those provisions cease to have anything to bite on case of citizens rights that's likely to be decades. The rule implies that there's no right to terminate under the Vienna Convention of the Law of Treaties, where a termination right would depend on showing that the parties intended there to be a right to terminate, or the treaty implies such a right very hard to read that into the agreement. What are the forms of termination might there be. There's been some discussion of the possibility of termination as a result of fundamental change in circumstances that's article 62 of the Vienna Convention difficulty with any such argument is that it's well established. For example, in the large Maros dam case that termination for fundamental change is an exceptional position and requires a very fundamental complete change in the rights for obligations of the parties compared to what was foreseen. That's a very difficult threshold to overcome here. As far as amending it is concerned, as Jack has already made made this point the joint committee has certain powers to amend the parts that relate to citizens rights money and the separation provisions and the right to terminate under the Vienna Convention of the Law to address emissions or to cater for unforeseen circumstances that's an article 164 those but that's a limited provision it doesn't obviously involve allow any amendment to make major changes in the provisions of the EU treaty, that would require a separate agreement, and that would raise on the EU side a question of what the legal base of that separate agreement would be some suggestion that it could itself be article 50 but it's more likely that it would be article 216 the general provisions in the EU treaties for negotiating agreements with third countries. Right basic structure of the agreement. And I'll deal with a very fast part one new general principles and some points just to pick up there which are important. One is that the agreement must be interpreted or applied in accordance with the EU law as it stood on the end of transition, whenever it refers to EU law or to concepts of EU law. And that raises various questions and one question being discussed at the moment in connection with the internal market bill is how one reads article five of the protocol which is a general obligation to refrain from taking measures that just just jeopardize the objectives of the agreement and that language fairly closely mirrors the language of article 4.3 of the TEU and there's a lot of EU ECJ case law on that. But I think there's some argument as to whether one has to read article five in that in the same way as one would read article 4.3 Part two citizens rights is that I wouldn't say very much about that because it would take too long part three separation provisions run off provisions, even all sorts of questions like such as what happens to references from the United Kingdom that are halfway through what happens to infringement proceedings against the United Kingdom that haven't yet got going, or have got going but halfway through the process, and you'll find answers in those provisions essentially all of the answers to all of these is that they keep going. And the, for example, the Commission has four years from the end of transition to pick up on infringement proceedings against the UK and various areas. There are four deals of the transition period which were not now interested in part five with money and part six with institutions. Importantly article 182 makes it clear that the protocols are an integral part of the withdrawal agreement. It's sometimes suggested that the UK might be in a position to opt out or denounce the protocol without while somehow leaving the rest of the agreement intact it's very difficult to reconcile that with article 182. I'm just conscious of time. I shall might have some things to say about the Northern Ireland protocol but given where we are on time I think I might stop there and see if we can pick up the provisions protocol in questions or subsequently probably time to let Alison say what she needs to say. Great, George. Thank you very much indeed. And as you say, all of this now requires the UK to implement this analysis going to tell us more about the Brexit legislation in the UK so thank you Alison. Thank you so hopefully this has allowed me to hang on. There you are. You should now be able to see my slides so hopefully you can see the slides. What we do is to try and talk to the situation we are hopefully or not hopefully depending your political perspective going to be in from the beginning of next year. So I'm trying to look at the idea of how do we deal with retained EU law and those provisions of the withdrawal agreement that will all be coming into force from the 1st of January and do we see it is exactly the same as domestic law or is it slightly different. So as I hope you get from my subtitle it's not quite the same as domestic law so if you if you only take away its law gym but not as we know it then you've got probably about as much as I can explain clearly about how this is going to work. So just to talk you through it if it will let me do the slides there we go. As we know we have different aspects of retained EU law so this is just a snapshot of EU law at just before the end of IP completion dates we take our picture and it all comes through and we see this as EU derived domestic legislation. So that's the domestic provisions that have interpreted incorporated aspects of EU law, mostly delegated legislation so things like working time regulations, but also it can be other aspects of perhaps primary legislation whose purpose was also to implement some of quibbled even partially implement EU law so some lack of clarity as to how far these particular provisions will suddenly become EU derived domestic legislation, as well as domestic legislation and what difference that might make. We then have direct EU legislation which deals with the aspects of regulations and decisions and all sorts of tertiary legislation as well as secondary. We also have all the directly effective provisions of EU law and also the retained EU case law. So in addition to this, we have to take account of the fact that there are some general exceptions that we don't have so as everyone knows we don't have the EU Charter of fundamental rights and freedoms, but we do have the general principles of EU law, but only as principles of interpretation, they're not able to override or supply any form of domestic law, and we don't have Frankovich damages. So it's not just as Jack was making clear it's not just a snapshot of EU laws we're used to, there are some differences between EU law and the retained EU law as we go forward. There are also some other specific exceptions. So this has made it clear now through the 2020 act that it's just those bits of EU law and part four. So all those aspects that we used to call club rights, so both with regard to the aspects of the EU, the UK to take part in EU decision making, but also aspects of UK citizens to under EU law be able to vote in local elections are not there anymore. So those just to make it clear again is different to what we're used to also doesn't include decisions addressed to other member states, all those provisions that come through the withdrawal agreement which are dealt with different because they're a different type of law. And also any decisions relating to the enhanced cooperation or external actions before Lisbon. So yes, it's, it's simple to see as a snapshot but as you can see there's some subtle differences between what we're used to and what we have going forward. The big area of complication is directives, because directives we're going to have a while of a time trying to work out how directives work. And the best way I can get us to think about this is in terms of whether we've implemented it, whether we've not bothered to get around to implement it, or when we've misimplemented it. If we're in a situation where we've implemented it, then we no longer rely on the directive, we rely on the legislation to implement a directive. And that becomes what was supposed to be relying on instead. So it looks fairly straightforward. Don't use the working time directive. Go away and use the working time regulations that have implemented the directive. Okay. So what do we do with if we haven't implemented it. Well, we're then in a situation of if we had a requirement to implement this directive, but we haven't implemented it in time and we have no pieces of legislation, or maybe we didn't implement it because we thought other provisions implemented it or we thought the common law had implemented it in some way. What do we do then. Well, we have this wonderfully phrase that no one really seems to understand that we do have this element of being able to recognize the rights under a directive, but not those things wonderfully worded, not of a kind recognized by the core or any core to try being on any case so you have this wonderful thing of in order to be recognized they have to be of a kind of rights that were recognized by the government before we left. And the big question about that is, do we see that as well that's obviously got to mean any provision under a directive, because we know before we left that the ECJ recognize that directives can have direct effect, but only vertical and if the date of implementation has passed, or does it mean that has to be a specific case, recognizing that that specific provision of the directive had direct effect. And we don't know, we'll find out. There are other quibbles as to whether this means rights in the sense of they were directives, we understand what directives are, and that's the kind of force they have, or are they now different because they're now coming in as a sort of separate elements of this agreement later on so we have to deal with them and not as if the directives, but there's some kind of law that came in with the implementation agreements. I think my basic answer to that is, I think we'll probably end up with treat them as if they're directives, and if they've definitely been recognized as having direct effect beforehand, we're fine if not have fun arguing that we should recognize them as having direct effect because of a kind means generic and not specific, but we'll find out as the case though goes forward. What do you do if you're dealing with misimplementation. I'll come to that when we talk about how we interpret things so so far absolutely clear and I don't understand why people finding it complicated. If that wasn't bad enough, we also have the aspects of the withdrawal agreement provisions. So we have the ins and outs of the aspects of citizens that rights of the EU, the rights and protections of citizens from the EEA after Switzerland and the various agreements that have been brought into the withdrawal agreement and of course the Northern Ireland protocol and all of these are slightly different from normal law. So what do I mean by slightly different. Well, their source is different. And because their source is different because of the way they've been incorporated. This means that their status is slightly different from normal legislation. Their interpretation is slightly different from normal domestic provisions and their force is slightly different with a slight bracket because I couldn't resist the temptation due to show review may also be slightly different. So why do we mean this what are the differences and let's start with retained EU law. Now the simple case is if you have EU derived domestic legislation, we can just treat it as its domestic legislation. So that that's fine that that's not too bad. So we can just see in a sense is that in terms of its status where it gets more complicated is retained in your case or which will look up and look at interpretation and the retained EU legislation. And this is when we had this wonderful section that was brought in in order to deal with the problems of how do you deal with conflicts of law, because EU legislation could be secondary and tertiary. And how do we deal with that conflicting with domestic legislation that might be primary legislation case law or delegated legislation. And the answer is we didn't fully answer the question. And instead, we came up with this idea of principle and minor EU legislation, which is treated slightly differently in terms of how we repeal it, but we haven't necessarily said if that status also transfers across when we're thinking about how it conflicts with other areas of law. So the basic summary is if it's principle, it's as if it's primary when we're repealing it. If it's minor is as if we're secondary legislation when we're repealing it. And the question then becomes, is that also going to be the way in which we deal with these particular provisions of retained EU legislation when we're dealing with how they might conflict with other provisions, rather when we're dealing with how we repeal them. And directly affected provisions of EU law are treated as if they are primary, again, with regard to repeal. So I can see all sorts of fun and gains of how we deal with different conflicts between those provisions as we go on. Then we have to deal with how it's interpreted. It's interpreted differently because it is still coming from EU law. So in that sense, it's still going to be interpreted as if it's EU law and not necessarily as if it's domestic law. And we know this because the validity meaning or effect of retained EU law has to be interpreted in line with retained EU case law and the general principles of EU law, but only those in existence at the snapshot before the end of IP completion day. But it gets more complicated than that because we know that the Supreme Court is not bound by retained EU case law, so it can decide to interpret it differently. And we know going forward that it may be other courts can do this as well. We don't know which ones yet because the consultation process on whether this should be the High Court and the Court of Appeal or just the Court of Appeal has closed but I haven't yet found the outcome of that consultation process. So I could have missed it if I have please let me know. So I'm not fully sure yet who will not be bound by the previous decisions. And also, as we said, it's only with regards to case law prior, but there's a possibility that case law afterwards, you could decide if it's relevant to matter before the Court of Tribunal to interpret those provisions in line with case law of the CJ EU afterwards. So the way in which we interpreted it still got a flavor of being EU law and so in sense is differently interpreted from how we'd interpret domestic law. And the force is, it's pretty much the same as we see domestic law. So the supremacy of retained EU law only applies to provisions enacted prior to IP completion day. So just like we see normally kind of provisions in primary legislation, it will imply to repeal earlier provisions, but not the later provisions with the proviso that if you have later law that is modifying early law. And the intention of that modification is to retain the aspect of supremacy of EU law than it is retained. Again, I can imagine it's having lots of fun and games trying to work out what we mean by modification and not repeal and what we mean by that particular intention. So I think a lot of that going forward will require clarification. What about judicial review? I'm just skipping that. Don't need to worry about it here. We'll come back to that later. The withdrawal agreement. So the withdrawal agreement provisions, it's almost as if they have a similar status to EU law when we were part of the EU because there is this element of trying to give them elements of direct effect and supremacy and they're going to be interpreted differently and there's a retention of aspects of preliminary references, slightly differently for citizenship rights and it's limited, but it is there for the Northern Ireland protocol. But we all have to take into account what's going on in the UK internal market bill, which is going to have an impact on how that works. So with regard to interpretation, section 7C of the 2018 Act shows that they have to be interpreted in line with the relevant separation agreements, taking into account of the aspect of the need to maintain consistency with the reciprocal sites. So again, there's this flavor of EU law. They're not exactly the same as domestic bill. They're going to be read slightly differently. So with regard to the force of these particular provisions, we have 7A and 7B that bring in this idea of trying to make this similar to a form of direct effect. So it's a similar wording to what we used to find under the ECA 1972. They're recognized and available in domestic law, enforced aloud and followed accordingly, and every enactment is to be read and have effect subject to these particular provisions. So, but we know that this comes through the element of UK law because we have the aspect of section 38 of the EU withdrawal agreement Act 2020, which brings us to those lovely provisions in the UK internal market bill currently now clauses 44, 45 and 47 in the version that was put before the House of Lords at the end of last month. So that's the version I'm going from because it seems to be the clearest one you can find at the moment, which is aiming to switch off that element of direct effect and supremacy as regards these particular regulations to do with exit procedures and descriptions of goods from Northern Ireland to the UK, state has under the Northern Ireland protocol. And we have this in tandem element of switching off judicial review, or at least with regards to their lawfulness for transgressing relevance international and domestic law, but there's all sorts of quibbles as to how far that will remain. I don't want to go into the details of that because it's been discussed in other webinar webinars, but you do need to be aware of this because that's going to have an impact on how it works. So all I really wanted to show you in a very kind of very quick whistle stop tour is, it is law, but it's not quite the same as domestic bill that we're used to which is why I think we do need to take a step back I think very carefully about what is it, what is it status and how are we going to interpret it and what force will it have going forward. Thank you very much. Thanks very much indeed Alison and my job is both easier and more difficult and that unlike the other speakers I don't have a legal text to work from because I'm going to try and say something about the future relationship with the EU. And I think, although we tend to focus on the substantive differences between the EU in the UK and the negotiations on things like fisheries they aid, I think there are also really important points of difference about the legal quality of that future relationship. And the first set of difficulties is where common starting points have taken both sides down really very different trajectories. The second set of difficulties is where different starting points may find convergence on an agreed outcome somewhat challenging. I think as some of us have highlighted there is of course still a risk of a no deal, if you like a real deal no deal Brexit. This has not been eliminated just because the landing zones on substantive differences are resolved. And so the legal quality of a future relationship depends on how and whether these deeper difficulties can be resolved. So I want to say a little bit more about these points in more detail. So common starting points, but diverging outcomes. I think there are three aspects where both sides appear to agree, but which leads them in somewhat different directions. And I'm going to look at three points to the political declaration, the protection of autonomy, and the free trade agreement as a model for a future relationship. The political declaration, the political declaration, which was part of the article 50 process ought to have been a common starting point for both sides with a clear destination in mind. The EU has developed its negotiating directives in line with the political declaration and the commission's recommendation based on that political declaration. And that despite revising it, the political declaration does not fully reflect the UK's current position in the negotiations, and the UK has retreated from the commitments to level playing field requirements contained in the political declaration. And of course the UK antenna market bill is indicative that the UK is unhappy with what it signed up to in the withdrawal agreement and the Northern Ireland protocol, let alone the non binding political declaration. So in short, the political declaration hasn't successfully launched both sides onto the same page and onto the same path towards an agreed outcome. In terms of autonomy, the UK's position on its future relationship with the EU evolved between the, the may and the Johnson governments, the level of alignment with the EU that the may government would accept became instead the desire for maximum UK autonomy to diverge from EU rules. In terms of trajectory for the UK that means they go setting a free trade agreement using the minimal, minimal discipline of WTO rules, regulatory divergence is accepted and all that is required is non discriminatory national treatment. But the EU also wants to protect its autonomy to and that means protecting its model of a regulated social market economy, free from distortions to competition. In this fear of regulatory competition from the UK, the EU sees the future agreement as a way of trying to keep the UK more aligned to its economic and regulatory model, and that implies going beyond the normal discipline of a free trade agreement. So what then about a free trade agreement as a model of a future relationship. The UK position of Theresa May was a, if you like a Brexit of many colors, a bespoke Brexit different from other agreements that the EU had agreed with non non member states. It was challenging for an EU which tended to see Brexit in terms of existing models of relations with non member states. The infamous Barney slide which calibrated British red lines against types of agreements with which the EU had negotiated concluded that a comprehensive free trade agreement was likely. The most important governance approach is that basically any deal will do it actively wants a free trade agreement with boilerplate language cut and pasted from existing EU free trade agreements. So though both sides agree that free trade agreement is the basis for the negotiations. The EU wants the free trade agreements to be at the core of a more extensive package of cooperation. It's going to be more bespoke than boilerplate. The level of ambitions are different, as well as how protection of autonomy is going to play out under this free trade agreement model. So can divergent starting points, none less result in convergent outcomes. One of the points of divergence between both sides is the structure and form of what might be agreed. So for the UK, it's negotiating position was to advance a set of discrete legal texts for each aspect of the negotiations, operating alongside a free trade agreement and with distinct governance arrangements. The EU, the comprehensive free trade agreement and deals on fisheries and security cooperation, all form part of one package with shared governance structures on dispute resolution. I think that a governance system based on joint committees and arbitration is actually somewhat easier for the EU in many ways, because it gets around some of the legal problems of the past, where judicial type structures have been given powers to interpret the conflict with the jurisprudence of the Court of Justice. We think about the EEA agreement example there. But that said, it doesn't want to replicate the Swiss model of managing multiple agreements, so the UK's desire for an ala cart system and suite of agreements is one that finds troubling. The other significant diverging starting point was on the role of the transition period and what sort of agreement might come out at the end. Now the UK made clear that the outset but there'd be no extension of the transition period. Negotiations would have to be focused on a core set of issues around the free trade agreement. The EU was unhappy with this limitation because clearly made it more difficult for it to try and roll together the negotiations into a single package. On the one hand, this does allow negotiations to focus on the free trade agreement, but on the other it may heighten the risk of failure, which means that there remains a risk of a no deal Brexit, both with and without a negotiated agreement. With an agreement, the European Parliament has signaled that it won't consent to an agreement if the UK persists with the offending provisions of the UK internal market bill. A mixed agreement could result in ratification problems in the member states. Now that would delay certain aspects rather than result in a no deal. But it may be that talks just do not reach a conclusion by the end of the transition period. Now, although this is often described as leading to trade on WTO terms, we should be aware that legislative frameworks within the UK and the EU and its member states will kick in. And as Jack highlighted, no deal SSI's will revive at the end of the transition period with some amendments and these SSI's themselves will include powers to make amendments to retained EU law. Things are more difficult on the EU side. EU legislation allowing for third country cooperation is often dependent on being an implementation of a prior international agreement. So if there is no agreement, it makes it hard for those provisions to click in. So let me conclude with the last round of formal negotiations now to an end attention is focused on whether substantive agreement can be found. But the issues are not just about resolving substantive disagreements. The legal quality of that future relationship has been and remains an issue. A no deal Brexit will throw us back onto a set of default legal instruments that include WTO rules, but importantly also internal legislation within the EU in the UK. And if there is a deal that will also require domestic implementation legislation, as well as the agreement itself, all of which underscores the point we are making about the needs to pay attention to EU relations law as an entire ecosystem of multiple sources of law. Thank you very much. Thank you, Kenneth. I understand that we're now going to take a few questions that have been typed into the Q&A box. The first is from Richard Pike who asks me and George about the fact that we both mentioned the scope to amend the withdrawal agreement. There have already been some amendments by the Joint Committee. As a practical point, is there a consolidated version of the withdrawal agreement that includes all the amendments that we made, if not work and one find the amendments agreed by the joint committee. I'm not personally aware of a consolidated version. I suspect there may well be one on Eurolex as George has suggested. What we're trying to do on the resources tab of the EU relations law.com website without pushing it too hard is to collate all of these together. We have put those on, but I was astounded to find the joint committee decision was only published in the European publications, the official journal and there wasn't a UK equivalent. So I think there is a bit of a rule of law problem going forward as to where is this all collated. This new joint committee stuff that's coming out and currently it was only we had to wait for an official publication in the EU official journal so we'll do our best to collate it on the website. But unless anyone else has any bright ideas, that's what I've got on that one at the moment. Then the next question was was more of a comment I think addressed to Alison from Philip Moser QC of Moncton chambers. He's probably sat downstairs as I speak. He says, in relation to the of a kind wording of the directives being incorporated into retain the law. It's unclear, but the reference to rights of a kind in his provisional view is likely to mean that rights are retained if they are similar, e.g. using the same words as rights that have been expressly recognized as directly effective rights before exit. And indeed another commentator states of a kind surely means the specific right, not merely the concept of directly effective rights is what the legislature had in mind. I wonder if you had any, any thoughts on that. I think if he got me to pick a side I'm with I think that's what it means I think otherwise it would have just it would have worded it slightly differently. So I think the intention probably is to say it has to be something that is similar enough and of, you know, the wording is similar as was set out or it's something that's been recognized as having that direct effect. I think you're probably right I think that probably is the interpretation that is intended but it's one of these things where as you pointed out in your blog, it is open to different possible interpretations and I think that might be something that will have to be decided through case law and I can see why you could say well surely that there is this narrow and this broad interpretation I can see that needing to be resolved but they're probably right the narrow is probably the one to go with. I think it would be a fascinating one for courts because as I've blogged previously, this other kind wording has at least two different interpretations it's either, there has to be a case before exit day but the ECJ actually said that was a directly effective right in a directive, or it's of the conceptual type of question that it would have satisfied the concept of directly effective rights before so what I think litigators listening to this need to think about is, is there an unimplemented directive that somebody wants to rely on because of course as you said Alison if, if it's already been implemented in domestic law by a regulation for example that's fine. But the problem becomes is so many directive visions are so obviously directive directly effective and so they haven't been implemented or no one's litigated it before so there isn't a case in the ECJ before. So it'd be interesting to see if anyone can think of any particularly egregious examples of that. It's a very frequent case. A very frequent case as well as cases where the domestic implementation regulation doesn't actually implement directive properly. That's probably actually a rather more common case than simple non implementation, but it's been has been implemented but implemented badly. Yeah, I think the position is that you would still be allowed to go to court and I will hear is the directive online to please use this as a guide to interpretation of this provision. But sometimes that requires interpretation of a sort that gets rather strained. George, just while you're on there and maybe Jack can have a look through some of the other questions if there's any else to pull out. But you, George, when you said there about the wording drawn from Article 43 of the Treaty in the European Union or the sincere cooperation obligation and its translation into the good faith obligation in Article five of the withdrawal agreement. Do you want to just say a little bit more about what you think that relationship is. There's a text right in front of me, but my recollection is is that article, the wording of Article five is pretty similar to the wording of Article 43 of the Treaty on the European Union. And of course there's a lot of case law relying on that explaining what it means. There's a lot of cases it where, I mean, we're very well known cases like the old by by Irish case and so on where you have you have advertising campaigns, you have state aid cases involving statements by ministers that they will of course make sure that such and such a company doesn't go unsolved and those are all held to be measures falling within Article 43 if necessary well appropriate. I mean, the debate arises because of the discussion. I mean, I've been thinking about it a bit in relation to the discussion of whether the internal market bill is itself, even before it becomes law or before regulations are made under it, actually, a carve back the, or actually remove the direct effect of the withdrawal agreement contrary to Article four whether at this stage whether as of now, there is an infringement and of course the EU says that there is I think in order to make that that the case that there is an infringement now, you have to rely on Article five I don't think you can just rely on Article four for that because I think it's happened legally. There's no change if you look up what you're asking what is the law in the UK now because it doesn't include the bill. I don't think there'd be much doubts that laying a government proposing legislation an EU member state government proposing legislation that breached an EU obligation would be likely to infringe Article four three and question is whether it breaches Article five of the withdrawal agreement and if you read the two together I suppose the argument and then you say that there is breach of article five but should you do that. Of course the commissioners relying on a similar style of argument in the infringement proceedings it has against the UK on the citizens rights elements where it's saying that the UK law present would make it difficult in the future to fully implement. Jack did you have any run run out of time now do you have any last kind of concluding thoughts or comments you have to anything you want to to pick up on. No I thought that that was that was really helpful there there are maybe two questions if people do want to stick stick around for five minutes I see that we've still got quite a lot of attendees. You can probably go through very quickly. So I'll ask both of them and then people can chip in. So one really difficult one from Catherine Barnard to me. I would welcome anyone else chipping in. You said there might be a rollover of you law for a few weeks into 2021 what legal base with the EU used to do that. And another good question from Romain Gerard under article two of the withdrawal agreement. Do we have to understand that all of the withdrawal agreement itself is part of the union law in so far as it's an international agreement. My very quick reactions to both those questions. I don't think the whole of the withdrawal agreement is union law. I think any lawyer's perspective may well see it as that but I think you have to see it as a international law agreement, and the UK is a dual estate and quite a lot of parts of it refer to union law concepts but that doesn't make it union law, it just encompasses them. And in response to Catherine's question about rollover into 2021. The honest answer and I hate to say is I don't really know what the basis would be. I guess that what would happen is within the free trade agreement itself. There would be a provision that gives the UK some time to implement it. And so it doesn't all start kicking on. And so there would be a fudge that way, because I think the transition period. To article 50 could have been up to two years and we only had one in the end. And so I think there might be a competence there for the EU to enter into an international law agreement that has that sort of effect but do any of the other panelists have any views on those two last questions. And just on the, the kind of the rollover, but I mean there always was an open question around about what did article 50 just end at the point at which the UK K left and I think many people took the view that it was but I remember Derek Wyatt giving evidence to the Foreign Affairs Committee the House of Commons where you said well you know there may still be life in the old dog yet so I'm not sure if that in itself would be a basis but I think as you say, the withdrawal agreement the FDA itself might find a way of creating some sort of internal transitional period of a particular legal quality. It may not be exactly the same in terms of the language of a rollover but trying to achieve that end by writing to an answer on the other points. Okay. I think, given the time that we've had on this and given that with these are our issues we're going to explore in more depth as in the webinars as we advanced and today, we really wanted to set the scene, identify the field of study that we are we are looking at, and next time we're going to look more in more detail at some of the enforcement and dispute resolution mechanisms that pertain so all I want to do today is first of all, thank all the speakers for their participation today I thought that was really excellent. Thank particularly everybody who's tuned in to watch this. Obviously there are a lot more questions are being asked than we can answer we will try and get through things in due course of the course of the webinars and through the EU relations law blog itself where some of this will be explored in a bit more detail, but thank you very much for all your attendance today.