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Brexit FAQ Updates: what’s the latest?

Daniel Greenberg

02 Feb 2018

As the Government continues to negotiate the UK’s exit from the European Union, stay at the full front of the latest developments as they unfold with our Brexit FAQ Updates – written and regularly updated by Daniel Greenberg, General Editor, Annotated Statutes and Insight, Westlaw UK, (Counsel for Domestic Legislation, House of Commons).

What’s happening to the EU (Withdrawal) Bill in Parliament?

The Bill completed its Committee Stage on the Floor of the House of Commons on 20 December 2017. An amendment was made by the Government to give a concession on scrutiny of subordinate legislation under the Bill, which had been a key concern on both sides of the House. The Bill completed its Commons stages with Report and Third Reading Stage on 16 and 17 January 2018.

The Bill has now started its passage in the House of Lords. Consideration in the House of Lords is expected to be protracted, with the present timetable for Committee extending to the end of March. In the absence of a working majority for the Government in the Lords, it is inevitable that a number of amendments will be made on various issues, both substantive and procedural. The Second Reading took place over two days on 30 and 31 January 2018, and the Committee stage line-by-line examination of the Bill is due to begin on 21 February.

The Bill will then return to the House of Commons for consideration of any amendments made by the Lords. The most likely outcome is that the Government will concede on some, and aim to reverse others. If necessary, the Bill will then go to and fro between the two Houses until agreement is reached.

[Updated 3 February 2018]

Archive of updates: what’s happening to the EU (Withdrawal) Bill in Parliament?


What other legislation will be required?

The Government has announced that more than one Bill will be required to prepare for the Brexit process and implementation of any transitional or permanent agreements with the EU.

Around 8 Bills are expected in all. (And, of course, almost all domestic-policy Bills over the next few years are likely to have some Brexit component.)

So far, the other Bills introduced have included: a Trade Bill which ‘provides key measures that are required to build a future trade policy for the UK once we leave the EU’; and a Taxation (Cross-border Trade) Bill which will allow the UK ‘to legislate for a new customs regime to be in place by March 2019’.

There will also be a range of subordinate legislation dealing with aspects of the Brexit process under the EU (Withdrawal) Bill, under the other Brexit-related Bills, and probably under many domestic-policy Acts too. The Government have suggested that something in the region of 1,000 additional statutory instruments can be expected.

[Updated 26 January 2018]


Is there going to be a second UK referendum on Brexit?

There have been calls across the political spectrum for a second referendum. The Government’s present position is that there will be no second referendum on Brexit and that the next opportunity for UK citizens to express their collective opinion about the progress of the negotiations will be the next Parliamentary general election, whenever that comes.

The Government has, however, conceded a Parliamentary vote on the terms of the Brexit deal, although not on the principle of whether or not the UK should leave the EU.

It is difficult to see how the question in a second referendum, or indeed on a Parliamentary vote on the deal, could be anything other than academic: the process of leaving is probably irreversible, in terms of practical politics even if not in strict legal terms, and a mere expression of opinion by the public or Parliament that the UK should remain in the EU would have no power to stop the process or alter its terms.

[Updated 26 January 2018]


Is Brexit actually going to happen?

Almost certainly.

Even if the UK public and/or Parliament expressed a strong view that the original decision to leave the EU was a mistake, the process of withdrawal as a matter of EU law has begun and is probably irreversible in terms of practical politics, whether or not it is irreversible as a matter of strict EU law (which is a debatable point).

Even if all Member States, including the UK, concluded that Brexit had been a mistake and should be reversed, it is extremely unlikely that the 27 other Member States would agree to a simple cancellation of the decision to leave and allow the UK to remain a Member on its existing, highly preferential, terms; it would be likely that re-entry would be permitted only on substantially changed terms (including, in particular, abolition or diminution of the UK’s special rebate on contributions) and it is likely that it would be politically impossible for the Government to agree to those terms.

So, although nothing is impossible, should circumstances change and the political will be found in all 28 Member States for simple cancellation of Brexit; the political context at present makes it appear that there is no likely scenario in practice other than the UK leaving the EU.

[Updated 26 January 2018]


How hard might a hard Brexit be?

There is presently a significant possibility that negotiations on the terms of a deal, both as to the terms of withdrawal and the terms of a future relationship with the EU, will break down politically. It is therefore still a possibility that when the UK ceases to be a member of the EU automatically as a result of the two-year period triggered by the notice under Article 50 of the EU Treaty coming to an end in 2019, there will simply be no terms of agreement on any matter between the UK and the EU.

This would be the hardest possible of Brexits and would have political and legal consequences that would require to be addressed over a long period of time.

[Updated 26 January 2018]


How soft might a soft Brexit be?

It is conceivable that the agreement between the UK and the EU on their relationship after Brexit will include so many components of legal, political and economic standardisation that life after Brexit will be indistinguishable for most practical purposes from life before Brexit.

That is still one of the options. In particular, neither the EU nor the UK has completely ruled out continued membership of the Single Market and/or continued membership of the European Economic Area, and there are other possibilities and permutations. Individual Ministers have from time to time expressed views about whether Brexit inevitably involves departure from the Single Market, and in her key speech in Florence on 22 September 2017, Prime Minister Theresa May said that Britain will no longer be a member of the EU Single Market or Customs Union after Brexit; and she confirmed this on a trade visit to China on 2 February 2018. But the Prime Minister’s statements have been variously interpreted by Ministers and others, and they must necessarily be seen as a present policy statement on the part of the Government, and could change as a result of ongoing negotiations with the EU. In any event, a trade deal between the UK and the EU could replicate some or even all of the conditions of the Single Market, and the Prime Minister and other senior Ministers have stressed their wish for as seamless a trading process with the EU as possible.

What is most likely to result both in formal constitutional terms and also in practical commercial terms varies from time to time according to the progress of political negotiations. At one point around Autumn 2017, it was looking as though any progress towards a close trading relationship would be blocked by the other Member States and that the direction of travel was away from soft Brexit options towards hard ones; as of early 2018, however, the direction of travel seems to have shifted significantly in the opposite direction; but there is still plenty of time for that to change, in both directions, many times.

[Updated 3 February 2018]

Archive of updates: how soft might a soft Brexit be?


What’s the ‘transitional period’?

It became clear early on, and was probably always predictable, that two years is too short a period in which to negotiate a future relationship between a country leaving the EU and the remaining Member States. When one considers that any negotiated arrangement needs to be agreed at least in principle by 28 Member States through their internal political processes separately, as well as by the institutions of the EU collectively, and when one subtracts time for non-sitting periods in various parliaments and intervals in individual countries for general elections, two years begins to shrink into insignificance.

Some commentators therefore predicted early on that it would be necessary to agree as a first step a transitional period during which some or all of the UK’s obligations and rights as a Member State would continue, allowing more time for the details of the eventual withdrawal and future relationship to be agreed.

At present, there seems to be acceptance of the need for a transitional period, the most likely extent of which appears likely to be between one and two years.

The European Commission issued a press release on 29 January 2018 noting a decision by the General Affairs Council (Article 50) ‘to allow negotiations to begin on possible transitional arrangements’. The Council’s negotiating directives (which supplement the negotiating directives of May 2017) contemplate the UK remaining in the Customs Union and the Single Market (with all four freedoms), with EU law continuing to apply to the UK as if it were a Member State.

[Updated 3 February 2018]

Archive of updates: what’s the ‘transitional period’?


What’s the latest timetable for Brexit?

The only fixed point of the process remains 29 March 2019, at which point the two-year negotiation period that began when the Article 50 notice was served comes to an end.

All other dates and deadlines are speculative and informal.

The most important of these as at January 2018 are the targets for the EU (Withdrawal) Bill to complete its Parliamentary passage by the Spring of 2018, and for the European Council summit to review possible terms of a deal between the UK and the EU around the same time.

[Updated 26 January 2018]


How will the final withdrawal agreement be implemented?

There will need to be a range of implementation processes.

EU legislation will be required to give effect in the law of the EU to the withdrawal agreement(s), and this will require to be reflected by domestic legislation in each of the 27 remaining Member States.

The UK will need to pass legislation to implement its side of the agreement(s), and much or all of that is likely to be achieved by subordinate legislation under the EU (Withdrawal) Bill (or Act, as it should then be).

The overseas territories of the UK are likely also to have to make legislation reflecting their position as a result of the withdrawal.

The agreement itself is likely to take the form of an international treaty between the EU and its institutions on the one part, and the Government on the other. (Separate treaties may be required for aspects of the Union, including the European Atomic Energy Community.)

[Updated 26 January 2018]


How will the UK do international business after Brexit?

Depending on how ‘hard’ or ‘soft’ Brexit turns out to be, the UK may have to have recourse to World Trade Organisation (WTO) rules for its business with the EU. It is possible that the withdrawal agreement will provide terms for some elements of trade but not others, in which case WTO conditions will be required for those areas out falling outside the agreement. For example, as at the beginning of 2018, there has been significant political discussion around whether the implementation of the withdrawal deal will potentially cover trade in goods but not in services.

For trade with non-EU countries, the UK will lose its trading status as part of the EU bloc and will therefore trade either on WTO terms or in accordance with individual trade treaties negotiated between the UK and other countries. There has been considerable political and diplomatic discussion with existing trading partners about the conclusion of individual deals, but none have yet been concluded or are believed to be near conclusion.

There is also the possibility of the UK joining one or more existing trade blocs outside the EU and benefiting from trade agreements concluded by them with third-party countries.

[Updated 26 January 2018]


Will any EU law apply in the UK after Brexit?

In a ‘hard’ Brexit scenario, EU law will cease to have any application in the UK after Brexit.

The present EU (Withdrawal) Bill assumes that at least this degree of hardness of Brexit is likely to be avoided, and therefore makes provision for the retention within UK law of a specified range of EU law as it applied before Brexit, and for the future application of EU law to an unspecified extent to reflect the terms of any withdrawal agreement.

Some commentators find it hard to understand the notion of the retention of ‘frozen’ EU law, and see the choice being simply between cutting free of EU law altogether or retaining ambulatory application of EU law in particular fields. In relation to employment rights and equality, for example, the Government has come under considerable pressure during the passage of the EU (Withdrawal) Bill to accept that EU standards and legislative obligations should continue to apply, including future changes.

As with many other aspects, therefore, the future application and influence of EU law in the UK after Brexit can only be assessed once the political terms of the withdrawal agreement have been settled.

[Updated 26 January 2018]


Will the EU Court of Justice have influence in the UK after Brexit?

The present text of the EU (Withdrawal) Bill provides for the UK courts to have regard after Brexit to future decisions of the Court of Justice of the EU to the extent that they consider it appropriate.

Some commentators find this a troublingly uncertain approach, along the lines of it seeming unfair and undesirable to require the non-political judges to determine to what extent continued judicial influence of the EU will be appropriate, when this is a matter on which political parties, and politicians within individual parties, appear unable to agree.

In any event, as with other foreign courts, decisions of the Court of Justice of the EU will be of persuasive authority in relation to areas of UK law that are similar to areas of EU law; and given the fact that for some decades much of UK law will have its origins in EU law, that line of authority is likely to be considered of particularly persuasive weight.

[Updated 26 January 2018]


Where does Brexit leave UK overseas territories?

Different overseas territories of the UK have different kinds of relationship with the EU already. For example, Gibraltar is treated for many purposes as if it were a Member State, the Isle of Man is bound by Treaty obligations set out in a particular protocol, while the Falkland Islands have very little formal relationship with the EU.

The Government has reassured each of the overseas territories that their position and interest will be taken into account in the formation of the withdrawal agreement. Given the difficulty in establishing even the key terms of the agreements within the timescale required by the Brexit deadline, however, it is perhaps reasonable to expect that it may not be possible to give as much attention to the details of individual territories’ relationship with the EU as they might think desirable.

It remains to be seen whether individual territories will attempt to make their own agreements with the EU after Brexit, as to which there may be some scope legally but as to which there may be considerable political difficulty.

[Updated 26 January 2018]


Where does Brexit leave the Commonwealth?

The Commonwealth has no legal or constitutional relationship with the EU. Brexit therefore has no formal impact on the Commonwealth.

Depending on the nature of the trade relationship between the EU and the UK after Brexit, however, there may be opportunities for enhanced trading relationships between Commonwealth countries and the UK.

[Updated 26 January 2018]

Archive: what’s the ‘transitional period’? Archive: how soft might a soft Brexit be? Archive: what’s happening to the EU (Withdrawal) Bill in Parliament? Brexit: what’s to come in 2018? EU Withdrawal Bill government defeat: what next for Theresa May? The legal market: a look back on 2017 Brexit and the legal market EU sets out post-Brexit vision for intellectual property rights Interview: The impact of Brexit on the legal profession in Ireland Post Brexit: Tax haven status will make Britain great again!