Countdown to Brexit: 39 days – Progress review of the legislation needed for a no-deal Brexit

In this post, we look at the concerns over Parliament’s ability to enact the legislation to enable Brexit in the time remaining.

This week was originally scheduled as recess. MPs are still in Westminster but there are fewer Brexit debates and votes.

Commons activity will be dominated by dealing with some of the 600 ‘Statutory Instruments’ - giving Ministers the power to change pre-existing laws - and needed ahead of Brexit.  This week's batch range from European Structural Funds to clinical medical trials.

On Thursday 21 February, MPs will debate potential future free trade agreements with countries such as Australia, New Zealand, the US – and the ‘Comprehensive and Progressive Agreement Trans-Pacific Partnership’.

Meanwhile, the core legislation for a Brexit under the terms of the Withdrawal Agreement – as negotiated and then agreed between the UK and EU in November 2018 - is the ‘European Union (Withdrawal Agreement) Bill’ – assuming that it is passed into law by a majority in a meaningful vote in Parliament.

If Parliament rejects that Agreement, the UK will exit the EU on 29 March 2019 without a deal.  A ‘no-deal’ scenario requires legislation to ensure the UK has measures and regulations in place that will replace EU law - which will no longer apply.

There are 13 Bills and draft Bills associated with the process of exiting the EU – in a ‘no-deal’ Brexit at precisely 23:00 GMT on Friday 29 March 2019.  Parliament has enacted five:

  • the European Union (Withdrawal) Act 2018;

  • the Sanctions and Anti-Money Laundering Act 2018;

  • the Haulage Permits and Trailer Registration Act 2018;

  • the Nuclear Safeguards Act 2018; and

  • the Taxation (Cross-border Trade) Act 2018.

Enacting the remaining eight Bills before a ‘no deal’ Brexit is “desirable” - but which are strictly necessary - and which might be considered optional?  The remaining proposed Bills

Trade Bill 2017-19

Amongst other things, the Trade Bill sets up the ‘Trade Remedies Authority’ - which will protect UK business against unfair trade by other countries – known as “dumping”.  On 6 February the Secretary of State for International Trade, Dr Liam Fox, told Parliament’s ‘International Trade Committee’ that he was “increasingly confident” that the Bill will pass.  He said that, “the Government has a range of contingency plans” if the Bill is not enacted - but cautioned that, “even if we were able to put temporary measures in place we would still need the Trade Bill to give us long-term assurances.”  The Committee has asked for more details regarding the Government’s contingency plans.

Agriculture Bill 2017-19

The Agriculture Bill provides the legislative framework for a seven-year agricultural transition period moving from the current Common Agricultural Policy arrangements towards brand new policy and payment approaches in England and Wales.  The passage of the Bill before ‘exit day’ would facilitate a smooth transition to the new framework.

The Bill also contains provisions to secure membership of and compliance with the WTO Agreement on Agriculture.

Fisheries Bill 2017-19

In a ‘no-deal’ Brexit scenario, the UK would become an independent coastal state from March 2019.  It would no longer be subject to the Common Fisheries Policy (CFP) and would take over responsibility for its Exclusive Economic Zone.  This would enable the UK to determine fishing opportunities in its waters.  The Fisheries Bill gives the Secretary of State the ability to set and distribute fishing opportunities and revokes EU vessel access to UK waters.  It also excludes foreign unlicensed fishing vessels from UK waters.

In addition, the Common Fisheries Policy (Amendment etc.) (EU Exit) Draft Regulations – as currently drafted – remove several conservation measures.  It is expected that these will be replaced by provisions in the Fisheries Bill.  If the Bill is not enacted - and the CFP no longer applied - there would be concerns about a lack of regulation in these areas.

Brexit Partners future-fishing-rights-negotiations-delayed

Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19

The Immigration and Social Security Co-ordination Bill does three things:

  • it repeals retained EU law relating to free movement and brings EEA nationals and their families under UK immigration control;

  • it protects the status of Irish citizens in UK immigration law once their free movement rights end; and

  • it makes provision regarding retained EU law governing social security coordination.

The Government has stated that the power to make regulations relating to social security coordination is necessary to enable it to deliver a range of options after exit day.

Healthcare (International Arrangements) Bill 2017-19

The Government has indicated that the Healthcare Bill is required because at present the Secretary of State does not have specific powers to give effect to healthcare arrangements for overseas health care.  However, the Bill might not be essential as it may be possible for the UK to enter reciprocal healthcare arrangements with the EU or with individual members states.

Minister of State for Health, Stephen Hammond, stated that the Government can introduce regulations to ensure: “there is no interruption to healthcare arrangements for UK nationals … in those Member States who agree to maintain the current arrangements for a transitional period” after exit day.  He made no statement about the situation in a no-deal Brexit – a sudden exit without a transition period.

Today, 18 February, Parliament’s ‘Constitution Committee’ has released a report on the Healthcare (International Arrangements) Bill.  In summary it raises concerns over the Bill's use of broad delegated powers and lack of adequate safeguards.  We will look at this in more detail in a future post.

Financial Services (Implementation of Legislation) Bill [HL] 2017-19

Most financial services regulation is currently done at the EU level.  The Financial Services Bill enables the Treasury to make corresponding or similar provisions in UK law to upcoming EU financial services legislation.  Without this Bill – and if the UK leaves the EU with no-deal - there will be no mechanism through which financial services regulation can be updated.

The Bill commenced its Second Reading on Monday 11 February 2019.

The Draft Bills

The Environmental Principles and Governance Bill 2017-19 and the Animal Welfare (Sentencing and Recognition of Sentience) Bill are ‘draft’ Bills.  These Bills are expected to be included in the next Queen’s Speech and will leave an inter-regnum in the event of a no-deal Brexit.

And in case you missed it – last week’s Brexit news

  • UK Prime Minister, Theresa May, suffered another Commons defeat after MPs voted down a motion endorsing her government’s Brexit negotiation strategy

  • Dutch Prime Minister, Mark Rutte, said that a no deal Brexit would be “devastating” for the UK

  • A member of the Bank Of England’s Monetary Policy Committee, Gertjan Vlieghe, said: “in the case of a no-deal scenario, I judge that an easing or an extended pause in monetary policy is more likely to be the appropriate policy response than a tightening.”

  • The European Commission rebuffed calls from EU asset managers to continue trading dual-listed shares in London after a no-deal Brexit

  • Major European manufacturers urged the EU to either make a clean break from the UK on March 29 or delay Brexit by six to 12 months, as a short delay would undermine their contingency plans

  • A hint surfaced that that a number of moderate Labour MPs were about to break away from the party for multiple reasons – including Jeremy Corbyn’s position on Brexit and a second vote

  • DP World - the largest investor in British ports - said that it was ready to boost capacity by 30% at its Essex terminal in order to ease congestion elsewhere in a no-deal Brexit

  • More than 30 groups from across the food and drink industry wrote to the government to suspend work on reforms from recycling to forest protection, as their members focus on contingency planning for a no-deal Brexit

John ShuttleworthComment