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The UK is presently in the middle of the Brexit Implementation Period which was set by the Withdrawal Agreement agreed by European leaders at the European Council on 17 October 2019 and which ends at 11.00pm on 31 December 2020. Uncertainty remains over the position following the Implementation Period, as that depends on whether an additional agreement is agreed with the EU covering the future trading relationship and other matters. Stay up to date with the latest developments as they unfold with our Brexit FAQ Updates—written and updated by Daniel Greenberg, General Editor, Annotated Statutes and Insight, Westlaw UK (Counsel for Domestic Legislation, House of Commons).
*Reviewed and updated 5 October 2020*
What Brexit legislation has been passed so far?
On 26 June 2018, the European Union (Withdrawal) Act 2018 was enacted, containing an initial set of provisions to deal with the withdrawal process. In particular: it provided for the freezing of a body of “retained EU law” in UK law post-Brexit, keeping a range of EU legislation, and EU-inspired domestic legislation, in place until overtaken by later domestic law. It also conferred a range of regulation-making powers to deal with modifications of retained EU law and other necessary provisions to ensure continuity of the law after Brexit.
The 2018 Act has been relied upon to pass a series of statutory instruments.
Several hundred statutory instruments have been made: they are mostly due to come into force at the end of the Implementation Period.
The European Union (Withdrawal) Act 2019 was passed in Parliament on 8 April 2019. It was designed to compel a particular course of political negotiation between the UK Government and the EU, in order to avert the prospect of a no-deal Brexit on 12 April 2019. That prospect was overtaken by the second extension decision of the European Council, and the Act can now be ignored for all practical purposes.
The European Union (Withdrawal) (No. 2) Act 2019 was passed in Parliament on 9 September 2019, to compel the Government to seek a further extension of the then exit day. Again, this has been overtaken by later developments and can now be ignored for all practical purposes.
The UK ceased to be a Member State of the European Union with the coming into force of the Withdrawal Agreement (agreed by European leaders at the European Council on 17 October 2019) on 31 January 2020 at 11pm GMT. The Withdrawal Agreement is a treaty between the UK and the EU treaty governing the interim relationship between the UK and the EU pending the conclusion of negotiations on permanent post-Brexit arrangements about trade and other matters. Under the Withdrawal Agreement, the UK’s exit from the European Union on 31 January 2020 is followed by a time-limited implementation period, which will last until 11.00pm on 31 December 2020 (“IP completion day”).
The European Union (Withdrawal Agreement) Act 2020 gives effect to the Withdrawal Agreement. It operates largely by way of amendment of the European Union (Withdrawal) Act 2018, although it contains some significant free-standing provisions (notably a free-standing consequential and transitional regulation-making power under s.41). At the end of the Implementation Period, ss. 2 to 4 of the European Union (Withdrawal) Act 2018, as amended by the 2020 Act, will save, and incorporate into domestic law, that EU law which applied in the UK at the end of the implementation period. The saved law will then be subject to any changes made by the UK Parliament or the devolved legislatures. The 2020 Act was required to implement the Withdrawal Agreement for it to have domestic legal effect and to enable the UK Government to ratify the Withdrawal Agreement.
A number of sectoral Acts have been passed that make provision for or in connection with Brexit, including: the Nuclear Safeguards Act 2018; the Haulage Permits and Trailer Registration Act 2018; and, the Taxation (Cross-border Trade) Act 2018, the Counter-Terrorism and Border Security Act 2019; the Crime (Overseas Production Orders) Act 2019; and the Direct Payments to Farmers (Legislative Continuity) Act 2020. Each Act contains provisions and confers powers designed to deal with a range of practical Brexit outcomes.
A number of measures presently before Parliament are designed to address possible outcomes of the Brexit negotiations. Most significant (and controversial) is the United Kingdom Internal Markets Bill. This is described in the Government’s Explanatory Notes as being designed to “preserve the UK internal market, providing continued certainty for people and businesses to work and trade freely across the whole of the UK”. The Notes add:
- On 1 January 2021, the rules that have regulated how each home nation trades with the others will fall away and hundreds of powers previously exercised at EU level will flow directly to the UK Government and the devolved administrations in Edinburgh, Cardiff, and Belfast;
- To ensure businesses can continue to trade freely across the UK as they do now, the Government set out in the UK Internal Market White Paper its intention to establish a market access commitment in legislation to preserve the UK internal market; and,
- As outlined within the White Paper, proposals for the UK internal market are driven by three overarching policy objectives:
- to continue to secure economic opportunities across the United Kingdom;
- to continue to increase competitiveness and enable citizens across the UK to be in an environment that is the best place in the world to do business; and,
- to continue to provide for the general welfare, prosperity, and economic security of all UK citizens.
The modifications to the market access commitment principles, alongside additional provisions prohibiting new NI-GB checks (including “Measures which take steps to clarify specific elements of the Northern Ireland Protocol in domestic law, concerning tariffs, export procedures and state aid, to remove any ambiguity”) have given rise to particular controversy in the context of the Withdrawal Agreement and the Northern Ireland Protocol, and the possibility has been raised of litigation before the CJEU in connection with the compatibility of the Bill with the UK’s obligations under the Agreement.
[Updated 5 October 2020]
What other legislation will be required?
If an agreement is reached with the EU about trading and other relationships after the end of the Implementation Period, a new Bill to provide powers to implement the agreement can be expected.
A number of additional sectoral Bills (in addition to those already passed and listed above) are in progress, including the Agriculture Bill, the Air Traffic Management and Unmanned Aircraft Bill, the Environment Bill, and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.
As explained above, a range of subordinate legislation would need to be replaced to give effect to a withdrawal deal—if and when—approved.
[Reviewed 5 October 2020]
Is there going to be a second UK referendum on Brexit?
Despite sustained calls across the political spectrum for a second referendum, and an equivocal position by the Opposition at various times, the Government’s opposition to a second referendum prevailed, and as the exit day has passed and the UK is now in the Brexit implementation period, the time for an effective second referendum is past. Some of the pressure has been diverted into pressure for a referendum on re-joining the EU, but there is no prospect of such a referendum being held in the immediately foreseeable future.
[Reviewed 5 October 2020]
How is the ‘meaningful vote’ going to be provided for?
In the course of the negotiations at the To and Fro Stage of the Parliamentary proceedings on the Bill for the European Union (Withdrawal) Act 2018, about the form and process for the ‘meaningful vote’ that the government had promised Parliament in relation to the outcome of the Brexit negotiations—the government conceded what became section 13 of that Act.
On 14 November 2018, the Government published a draft Withdrawal Agreement (agreed at negotiator level). This Agreement was agreed by European leaders on 25 November 2018 and laid before Parliament on 26 November 2018. The Agreement was subject to votes in the House of Commons as prescribed under section 13 of the EU (Withdrawal) Act 2018 on 15 January 2019 and 12 March 2019, whilst the Withdrawal Agreement alone, without the Political Declaration, was voted on by the House of Commons on 29 March 2019. The Agreement was rejected in all these votes. The Agreement was also subject to take note motions in the House of Lords.
On 23 May 2019, Prime Minister Theresa May resigned. A new Conservative Government was returned in the ensuing General Election, leading to a new Withdrawal Agreement which was confirmed in the European Union (Withdrawal Agreement) Act 2020.
[Reviewed 5 October 2020]
Is Brexit actually going to happen?
Brexit is now unavoidable: the UK formally left the EU on 31 January 2020—and is in the middle of an Implementation Period which will end at 11.00pm on 31 December 2020. There is uncertainty as to whether or not the UK and the EU will be able to agree a new agreement before the end of 2020 dealing with the future trading and other relationships, but even if no deal is reached the Brexit process will continue with a ‘no-deal’ Brexit at the end of the Implementation Period.
[Reviewed 5 October 2020]
How hard might a hard Brexit be?
It is an increasingly likely possibility that when the Implementation Period ends at the end of 2020 there will simply be no terms of agreement on any matter between the UK and the EU that have been settled by the EU and approved by Parliament so that they can be ratified by the UK.
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.
Institutions in the EU and in all Member States spent some time in 2019 preparing contingency plans for the possibility of a hard Brexit, as the possibility of a no withdrawal agreement, which was explicitly recognised in s.13 of the EU (Withdrawal) Act 2018, was increasingly perceived as a practical possibility. Those plans are being adapted and refined to reflect the possibility of a no-deal end to the Implementation Period.
[Updated 5 October 2020]
How soft might a soft Brexit be?
The Withdrawal Agreement agreed by European leaders at the European Council on 17 October 2019 and its accompanying Protocol express the intentions of the EU and the UK to move towards constructive trading and other relationships following the end of the Implementation Period. Subject to the progress of trade negotiations during 2020 (which have been interrupted and made more difficult by the Coronavirus outbreak), it is still possible that there might be limited disruption or change after the Implementation Period, with the possibility of significant legislative equivalence being agreed in a wide range of areas. Given the limited time available for agreement, a high-level framework agreement is probably the most that could be achieved before the end of the Implementation Period, and it might need to be combined with an additional Implementation Period or transitional period of some kind in order to provide time for the details to be completed.
[Updated 5 October 2020]
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.
The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018 provides for a transitional implementation period. Article 126 (Transition period) provides “there shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020”; and Article 127 (Scope of the transition) provides “unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.”
The European Union (Withdrawal Agreement) Act 2020 gives effect to the Withdrawal Agreement agreed by European leaders at the European Council on 17 October 2019. Under the Withdrawal Agreement, the UK’s exit from the European Union on 31 January 2020 will be followed by a time-limited Implementation Period, which will last until 11.00pm on 31 December 2020 (‘IP completion day’). During the implementation period, common rules will remain in place, with EU law (including new law) continuing to apply to the UK under the terms set out in the Withdrawal Agreement. At the end of the Implementation Period sections 2 to 4 of the European Union (Withdrawal) Act 2018, as amended by the 2020 Act, will save, and incorporate into domestic law, that EU law which applied in the UK at the end of the implementation period. The saved law will then be subject to any changes made by the UK Parliament or the devolved legislatures.
[Reviewed 5 October 2020]
What’s the latest timetable for Brexit?
The key fixed point of the process was originally 29 March 2019, at which point the two-year negotiation period that began when the Article 50 notice was served came to an end.
Article 126 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018 (Transition period) provides “there shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020”.
On 22 March 2019, the European Council and the United Kingdom agreed to an extension to the art.50 period until 22 May 2019, provided the Withdrawal Agreement was approved by the House of Commons before 29 March 2019, or otherwise until 12 April 2019 (European Council Decision (EU) 2019/476, O.J. No. L 80 I, p.1). The definition of “exit day” in the European Union (Withdrawal) Act 2018 was amended by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019/718 to reflect the extension, having been approved by the House of Commons and the House of Lords on 27 March 2019.
On 5 April 2019, the Prime Minister wrote to the President of the European Council seeking a second extension of the art.50 period. On 11 April 2019, the European Council and the UK agreed an extension to the art.50 period until 31 October 2019 (European Council Decision (EU) 2019/584, O.J. No. L 101, p.1). This extension could be terminated early if the Withdrawal Agreement was ratified and came into force before this date. Following the conclusion of the European Council, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019/859 were made under the negative procedure on 11 April amending the definition of “exit day” in the 2018 Act to 31 October 2019 at 11.00pm. The UK ceased to be a Member State of the European Union with the coming into force of the Withdrawal Agreement (agreed by European leaders at the European Council on 17 October 2019) on 31 January 2020 at 11pm GMT. The Withdrawal Agreement is a treaty between the UK and the EU treaty governing the interim relationship between the UK and the EU pending the conclusion of negotiations on permanent post-Brexit arrangements about trade and other matters. Under the Withdrawal Agreement, the UK’s exit from the European Union on 31 January 2020 is followed by a time-limited implementation period, which will last until 11.00pm on 31 December 2020 (“IP completion day”).
[Reviewed 5 October 2020]
How will any approved Withdrawal Agreement be implemented?
The Withdrawal Agreement was implemented by the EU (Withdrawal Agreement) Act 2020.
Any agreement on the future trading and other relationships between the UK and the EU will need to be implemented by a range of additional implementation processes.
EU legislation will be required to give effect in the law of the EU to the 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); some of that might be capable of being achieved by way of subordinate legislation under the EU (Withdrawal) Act 2018, as amended and supplemented by the European Union (Withdrawal Agreement) Act 2020; but a new Bill is likely to be considered necessary or desirable. Throughout 2020 a series of statutory instruments has continued to be made under the powers in the European Union (Withdrawal) Act 2018 in preparation for a no-deal Brexit and more are expected; but if a deal is successfully concluded they would have to be replaced with alternative arrangements.
[Updated 5 October 2020]
What does Brexit mean for Scotland, Wales and Northern Ireland?
At a political level the devolved institutions have been vocal about Brexit from the start, with the Scottish government, in particular, claiming that a majority of pro-remain voters in its territory in the referendum makes it desirable for it to seek some kind of special relationship with the EU after Brexit. In technical legal terms, however, there does not yet appear to be any general acceptance, particularly within the EU institutions, of a mechanism by which this could be achieved.
No special relationships between any of the parts of the UK and the EU have yet been negotiated, and none are expected in the reasonably foreseeable future (subject to any possible move towards Scottish independence).
Politically, Northern Ireland and its border and relationship with the Republic of Ireland remain among the most contentious and intractable issues of Brexit. The Protocol on Ireland/Northern Ireland in the Withdrawal Agreement provides arrangements that ensure that the UK (including Northern Ireland) does not remain in a customs union with the European Union. The Protocol also makes arrangements seeking to ensure that there are no checks and controls conducted at or near the border between Northern Ireland and Ireland, as well as providing that the arrangements contained in the Protocol are to be subject to democratic consent in Northern Ireland in relation to their operation and continuation. The European Union (Withdrawal Agreement) Act 2020 ensures that the rights and obligations under the Protocol are recognised and available in domestic law. The Act also includes provision to enable the Government to implement the arrangements necessary to comply with the Protocol to supplement these general overarching provisions. (It should be noted that the concept of a territory within the UK having special status in relation to the EU is precedented, in the case of Gibraltar; and the Channel Islands also have a special relationship with the EU on the back of the UK’s membership.)
The United Kingdom Internal Markets Bill has been a source of controversy in relation to devolution; apart from the question of its compatibility with the Withdrawal Agreement Protocol on Northern Ireland (because of the possibility of a trade border between Northern Ireland and the Republic of Ireland) the Scottish Government in particular has been insistent that the powers for the UK Government under the Bill to make binding trade arrangements for the UK internal market as a whole amount to a diminution of devolved autonomy in relation to a number of commercial matters. The Bill requires legislative consent motions in each of the devolved legislatures, and it is reasonably likely to be refused by some or all; that would not prevent the enactment of the Bill as a matter of law but it would increase the political sensitivities surrounding it.
[Updated 5 October 2020]
How will the UK do international business after Brexit?
As a member of the EU, the UK is automatically part of approximately 40 trade agreements that the EU has with 69 countries. If the Brexit Implementation Period ends without a deal on 31 December 2020, these trade deals will cease immediately.
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 a trading agreement will provide terms for some elements of trade but not others, in which case WTO conditions will be required for those areas 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.
The UK Government has signed or arranged for the continuation of a range of free trade deals, but some depend on the outcome of UK negotiations with the EU. Agreements are expected to take effect when existing EU trade agreements no longer apply to the UK, from 1 January 2021 with countries including the Eastern and Southern Africa (ESA) trade bloc, Iceland and Norway, Israel, Jordan, Morocco, South Korea, Switzerland and Tunisia. The UK also secured a free trade agreement with Japan in 2020, with the UK-Japan Comprehensive Economic Partnership Agreement being agreed in principle on 11 September 2020.
[Reviewed 5 October 2020]
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 the end of the Implementation Period on 31 December 2020.
The EU (Withdrawal) Act 2018 (as amended) 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’ retained 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 came 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. The political reality, however, is that the Government is likely to wish for commercial equivalence reasons to continue to make policy in step with the EU in some areas whether or not required to do so by the terms of any eventual trade agreement with the EU.
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 any approved trading agreement have been settled.
Under the Withdrawal Agreement (agreed by European leaders at the European Council on 17 October 2019) EU law applies, more or less, entirely during the Implementation Period.
[Reviewed 5 October 2020]
Will the EU Court of Justice have influence in the UK after Brexit?
Section 6 of the EU (Withdrawal) Act 2018 (as amended) provides for the UK courts to have regard after the end of the Implementation Period 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 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.
Article 4 of the Withdrawal Agreement provides: “4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period. 5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.”
[Reviewed 5 October 2020]
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, and 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.
The Withdrawal Agreement contains a Protocol on Gibraltar, and it establishes in Article 165 a specialised committee dealing with issues related to the implementation of the Protocol on Gibraltar.
[Reviewed 5 October 2020]
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 the Implementation Period, however, there may be opportunities for enhanced trading relationships between Commonwealth countries and the UK.
[Reviewed 5 October 2020]
This article is updated as and when developments unfold relating to Brexit.
