Countdown to Brexit: 77 days – no-deal Brexit means gaps in legislation and preparations - but UK extra time unlikely

There is a backlog of at least six Bills that must be passed into law before Britain leaves the European Union. Ministers are becoming convinced that a request for Brexit to be delayed is needed - irrespective of the outcome of next Tuesday’s vote on the on ‘the deal’ itself.

Brexit will happen ‘by default’ at 23:00 GMT on 29 March 2019. 

In order to replace the present set of laws and regulations that we are governed by as a member of the European Union, Parliament needs to pass six essential Bills: Trade Bill; Agriculture Bill; Fisheries Bill; Healthcare Bill; Financial services Bill; and Immigration Bill.

Without these Bills – and particularly in the event of a no-deal that has a ‘continue as we are now’ transition period – the UK will have a legal, regulatory and constitutional vacuum.

A BBC analysis, today, estimates the Government is heading for defeat on the Government’s withdrawal blueprint by a crushing margin of 228 votes next week.

Parliament has been warning for 18 months that preparations for Brexit are insufficient and running late.  This at every level from required legislation, statutory instruments and regulations, and practical preparations including recruiting staff to issuing new procedures and documents.

Now, even asking MPs to sit at weekends and cancel their half-term holiday in February cannot provide enough Parliamentary time.  A senior Minister said: “The legislative timetable is now very tight indeed.”

Jeremy Hunt speaking on the BBC this morning appeared to backtrack on his previous comments when he said he was: “relaxed about no-deal.”  He now thinks that “Parliament would block a disorderly departure,” whilst stressing that the public would see any failure to deliver Brexit as a “fundamental breach of trust” - which the country would “regret for many, many generations”.

He went on to say that: “if this deal is rejected, ultimately what we may end up with is not a different type of Brexit - but Brexit paralysis - and Brexit paralysis ultimately could lead to no Brexit.”

We look at the Parliamentary briefing, updated today, on what options are open to the UK taking into account constitutional and time constraints.

Background

European Union (Withdrawal) Act

Secondary legislation - about which there are significant constitutional questions - is being enacted under the European Union (Withdrawal) Act 2018.  This will preserve EU law in UK domestic law, or convert it into UK law on ‘exit day’.

If the UK leaves the EU without a deal:

  • “most” EU law will still apply in the UK as domestic law – this is known as ‘retained EU law’ or EU-based UK law;

  • no reciprocity with EU Member States;

  • no transition (implementation) period;

  • no framework for future relations – “let alone a full future relations agreement”.

A further referendum

Prescribed constitutional timescales require several months of preparation after an initial decision by Parliament to hold one.  With 77 days left until Brexit, this will require an extension of Article 50 – and that would need to be approved unanimously by the other EU 27 Member States.

A further complication of extending Article 50 is that European Parliament elections are due to take place on 23-26 May 2019.  Presently plans exclude UK taking part.   If Article 50 was extended until the end of June 2019, then there would be no need for European Parliament elections to take place in the UK.  However, if Article 50 is extended beyond this point, the UK would need to participate in the European elections - the new European Parliament will sit for the first time on 6 July.  This could result in MEPs being elected from the UK – just as the UK then leaves the EU.

Stopping Brexit by Revoking Article 50

Article 50 did not include provisions for a Member State changing its mind and wanting withdraw its notification to leave the EU.  

Instead it was referred to the Court of Justice of the EU (CJEU) – who ruled on 10 December 2018 that: a Member State that had issued a notification to leave the EU under Article 50 can revoke the notification unilaterally as long as a withdrawal agreement has not come into force - and the two year period (or any extended period) following the Article 50 notification has not expired.

The ruling said that a reversal of Article 50 must be an “unequivocal and unconditional” decision made by the Member State.  This means that the goal of revocation must be to actually stay in the EU, not to alter the shape of negotiations.

E-petitions

Parliament will discuss on 14 January 7 e-petitions that have received the required support to be put before MPs for their consideration.  They are:

  • E-petition 229963 - Leave the EU without a deal in March 2019

  • E-petition 221747 - Leave the EU now

  • E-petition 235185 - Walk away now! We voted for a No Deal Brexit

  • E-petition 232984 - Grant a People's Vote if Parliament rejects the EU Withdrawal Agreement

  • E-petition 241361 - To have a second referendum on Britain leaving the EU

  • E-petition 226509 - STOP BREXIT

  • E-petition 236261- Stop Brexit if parliament rejects the deal

Petitions 229963, 221747 and 235185, relate to leaving the EU without a withdrawal agreement; 232984 and 241361 relate to holding a further referendum on leaving the EU; and 226509 and 236261 relate to not leaving the EU.

Having worked through the summary of briefing notes, it seems that the default position of leaving with a no-deal Brexit on 29 March 2019 remains the most probable outcome with 77 days remaining.  We will, continue to focus on this outcome, the state of preparations – legal and practical – and the likely impacts on commerce and citizens.  Our aim is to allow people and businesses to prepare to make the switch to a post-Brexit world as smooth and uneventful as possible.

In the next series of insights we will look in more detail at: the economy; trade and customs; Irish border issues; free movement; food supplies; agriculture and fishing; energy; internal security; transport; research and higher education.

 
John ShuttleworthComment