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Brexit

Brexit and the Queen’s Speech

Aneil Sharma

26 Jun 2017

Theresa May’s vision for a clean break from the EU was confirmed in the Queen’s Speech despite an election result that has not provided her with the clear mandate that she was seeking in order to carry out that vision. In her introduction to the Speech, Theresa May pointed out that while much has been said about what the general election result meant for Brexit, over 80% of the electorate voted for parties whose manifestos promised Brexit.

Determined to make a success of Brexit, the Conservatives’ minority government – which still has not reached an agreement with the DUP – has laid out an ambitious agenda in this area, although the rest of the legislative programme is more modest as a consequence of the election result.

Repeal Bill

No longer ‘Great’, the Repeal Bill is still a bit of a misnomer. While it will repeal the European Communities Act 1972, it will preserve the bulk of EU law as at Brexit Day. Removal of the word ‘Great’ from the title of the bill is perhaps attributed to Parliamentary rules that prohibit the use of “argumentative titles or slogans”. Commentators have speculated on the political and symbolic significance of the removal of the word ‘great’ from the Bill, noting that its omission could reflect the increasing post-election hesitancy of the government.

More substantively, background briefing notes to the Repeal Bill suggest that it could include controversial Henry VIII powers to “correct” legislation that does not operate after Brexit. Such powers allow the executive – the government and the civil service – to amend Acts of Parliament by Statutory Instrument, without full Parliamentary scrutiny. Until the Repeal Bill is published, it remains to be seen whether these powers will be included, how broad they may be and whether they will enable more substantive legal changes to be made. But as it is estimated that there are almost 20,000 EU regulations, rules and directives that are part of UK law, the use of Henry VIII powers (controversy aside) would make the process of churning through the statute book a lot speedier.

Of course, the criticism of these powers is that they are undemocratic, and the Labour party has previously stated that they would reject their use to rewrite EU laws. If a Repeal Act emerges from Parliament without Henry VIII powers, it is likely that several more Bills would be necessary in order to make changes to the relevant legislation – entailing a much longer legislative process.

The background briefing to the Queen’s speech states that the Repeal Bill will “maintain the scope of devolved decision-making powers immediately after Brexit”. This means that matters currently dealt with by Brussels (for example, in relation to fisheries and agriculture) that one would expect to be dealt with by the devolved administrations post-Brexit may not in fact immediately flow back to those devolved administrations. There could as a result be amendments to the devolution legislation, which would engage the Sewel Convention; this states that the Westminster parliament should not legislate on matters devolved to Scotland without the Scottish parliament’s approval. The Sewel Convention applies equally to the Northern Ireland Assembly and the National Assembly for Wales, pursuant to successive Memoranda of Understanding and, most recently, the Wales Act 2017. If the Sewel Convention is engaged, the Repeal Bill could come under significant scrutiny on the issue of devolution and constitutional politics.

The Repeal Bill “does not put any constraints on the withdrawal agreement we will make with the EU and further legislation will be introduced to support such an agreement if and when required.” This sentence hints that all options are still on the table vis-à-vis the Brexit negotiations.

Labour’s new momentum could mean more challenges and amendments to the Bill and the accompanying draft legislation. However, assuming that the Queen’s speech is passed, and that the government remains in power for now, and given that Labour have also committed to delivering on the outcome of the referendum, it is reasonably likely that the Repeal Bill will become law.

Customs Bill

The Customs Bill will aim to ensure that the UK has standalone UK customs and indirect taxes regimes after Brexit, whatever the outcome of negotiations. The issue of customs is closely linked to the Irish border issue and some MPs have expressed a desire to remain inside the customs union, at least for the duration of a temporary transitional agreement.

The Chancellor Philip Hammond, in his Mansion House speech, said an “implementation period outside the customs union, but with current customs border arrangements remaining in place” should continue until “new long-term arrangements are up and running”. This option has been neither addressed nor ruled out in the briefing notes to the Bill.

Trade Bill

This Bill offers the clearest indication that the government means to leave the single market and customs union. The background briefing note states that the Bill will establish the legal framework “to allow the UK to operate its own independent trade policy” after Brexit; this simply isn’t possible as a member of the customs union.

The Bill makes no mention of the role that Parliament will play in establishing a future trade relationship with the rest of the world. Opposition MPs have previously stated their desire for future international trade agreements to be linked to other concerns, such as human rights and climate change. The realities of geopolitics are likely to trump these desires as the UK – in an effort to ensure it is seen as a global trading power post-Brexit – has already come under fire for its trade relationships with foreign autocracies.

Immigration Bill

Whilst this Bill does not mention Theresa May’s repeated promise to reduce immigration numbers to the tens of thousands, its purpose is to end the free movement of people. EU nationals will no longer have the automatic right to live and work in the UK under EU law. Any post-Brexit right to move to Britain will be subject to new UK immigration rules.

The notes for the Bill are silent on whether a visa waiver programme or some other liberal immigration regime could be introduced. Nor does it provide a hint of any details for a transitional agreement on EU citizens in the UK and Britons in the EU or the status of EU citizens in the UK in the run up to Brexit.

The Labour party has called on the government to unilaterally protect the rights of EU citizens. On this issue, Theresa May proposed an opening offer at the recent European Council meeting, which received a mixed response from EU leaders. David Davis has said he will present a detailed offer to the EU on Monday 26 June that he hopes can form the basis of an agreement on citizens’ rights.

Fisheries Bill

Until Brexit, the UK remains subject to the EU’s Common Fisheries Policy (CFP). After Brexit, the CFP will no longer apply to the UK unless the UK and EU agree otherwise. It may be the case that that UK fishing rights are an issue that could be traded away in an effort to secure a greater trade deal with the EU. This again would call into question the role of Parliament in trade deals. Though, if this were the case, it would not be welcomed in Scotland, where fishery policy is an important Brexit issue.

Agriculture Bill

The main purpose of this Bill is to provide stability to farmers. It is probably safe to assume that ‘stability’ can be interpreted as funding. The Leave campaign promised subsidies for UK farmers as Britain leaves the EU and the Common Agricultural Policy. Whether this Bill provides the means to keep that promise remains to be seen – little information on this Bill was provided.

Nuclear Safeguards Bill

In seeking to replace the provisions of the Euratom Treaty, the Bill will give the Office for Nuclear Regulation powers to take on the role and responsibilities required to meet international nuclear safeguards and non-proliferation obligations. It is not clear whether this Bill will replace Euratom provisions in all respects as Euratom has its own treaty relationships with third countries such as Japan and the US, which the UK will need to replicate.

This Bill makes no mention of retaining a close relationship with Euratom, which may be the simplest method of transitioning to a new UK regime. Indeed, such a relationship may form the basis of discussions on this topic in the Brexit negotiations.

While the Bill should be relatively uncontroversial, the process of replacing the many aspects of Euratom – replicating safeguarding inspections, agreeing a series of nuclear co-operation agreements with other countries (including EU states), and guaranteeing world-leading international research to name some of those aspects – will be incredibly complex. Talk of a transitional arrangement could go some way to alleviating the uncertainty caused by the silence in this Bill on so many issues.

International Sanctions Bill

This Bill should be relatively uncontroversial, but again, will be complex. There is no mention of the UK’s continued co-operation with the EU, though it is likely that the partnership will remain strong on issues of security.

Comment

The Queen’s Speech may have seemed rather thin on the ground, particularly as the Parliamentary session has been extended to a two-year period, but the bulk of the Brexit legislation means Parliamentarians will have much to do. Passing the legislation will be made trickier by the Conservatives’ extremely small majority (assuming they reach a deal with the DUP) and the questions over Theresa May’s durability in the face of questions over her leadership.

One thing that looks more likely from these Brexit Bills is that the chance of a ‘no deal’ scenario seems to have diminished somewhat. Most of these Bills would be complicated, to put it lightly, by the UK failing to agree a deal with the EU. Furthermore, none of the Bills mention any preparation for failing to reach a deal, which suggests either the government’s confidence in reaching a deal, or its refusal to truly countenance such a cliff-edge scenario.

Finally – and on a lighter note – it seems that some on the continent were rather happy with the Queen’s choice of hat!

For more information on the Brexit implications of the Queen’s Speech, see Practical Law’s Legal update: Queen’s Speech 2017: Brexit implications.

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