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Brexit FAQs Update: what’s the latest?

Daniel Greenberg

27 Feb 2018

Image credit: REUTERS/Stringer

As the government works 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 FAQs Update—written, and updated with the latest developments, by Daniel Greenberg, Counsel for Domestic Legislation, House of Commons, and General Editor, Annotated Statutes and Insight, Westlaw UK.

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

The Bill is now an Act of Parliament—the European Union (Withdrawal) Act 2018 (c.16). It received Royal Assent on 26 June 2018, following a To and Fro Stage between the House of Lords and the House of Commons during which a series of political compromises were debated.

The Scottish Parliament refused to pass a Legislative Consent Motion for the EU (Withdrawal) Bill. As a matter of law, that does not affect the validity of the Act in relation to Scotland or otherwise.

A wide range of statutory instruments will be needed under the Bill and the government has begun to produce them, albeit on a contingency basis until it is known on what terms, if any, the UK is leaving the EU. Under the Act, instruments that the government propose to take through the negative resolution procedure must first be presented as draft negatives to a sifting Committee in each House of Parliament, which may make non-binding recommendations for uplift to draft affirmative resolution procedure. To date, around 100 instruments have been sifted and about 25 percent recommended for uplift, and uplifted.

[Updated 28 November 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 eight Bills are expected in all dealing with particular sectors. (And, of course, almost all domestic-policy Bills over the next few years are likely to have some Brexit component.)

In addition, the Government has promised that part of giving Parliament a ‘meaningful say’ over the Brexit agreement process will involve the introduction of a Withdrawal Agreement and Implementation Bill, possibly before the end of 2018. The relationship between that Bill and the powers under EU (Withdrawal) Act 2018 is unclear.

So far, other sectoral Brexit 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’. Efforts to commit the UK to joining some kind of Customs Union or arrangement with the EU following Brexit, during the transition or possibly permanently, have focused recently on these two Bills with a number of amendments being tabled with a certain amount of apparent cross-party support. But almost all Bills at present have a Brexit component: for example, the Nuclear Safeguards Bill was used for a debate and Government defeat over post-Brexit membership of EURATOM; and even a Bill of apparently domestic focus such as the Haulage Permits and Trailer Registration Bill announces in the Government’s Explanatory Notes that it is in part about supporting the British haulage industry in a post-Brexit context.

As explained above, there will also be a range of subordinate legislation dealing with aspects of the Brexit process under the EU (Withdrawal) Act 2018, 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. The flow of instruments has begun on a contingency basis, pending clarity about the terms (if any) on which the UK will leave the EU.

[Updated 28 November 2018]

Archive of updates: what other legislation will be required?


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. The vote is now expected on 10 December in the House of Lords and 11 December in the House of Commons.

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.

The Court of Justice of the European Union has now been asked formally whether the UK could unilaterally withdraw its Article 50 notice to leave the EU—its decision is expected shortly.

[Updated 28 November 2018]

Archive of updates: is there going to be a second UK referendum on Brexit?


How is the ‘meaningful vote’ going to be provided for?

One of the most delicate parts of the negotiations at the To and Fro Stage of the Parliamentary proceedings on the Bill for the EU (Withdrawal) Act 2018 concerned the form and process for the ‘meaningful vote’ that the Government had promised Parliament in relation to the outcome of the Brexit negotiations.

Section 13 of the 2018 Act provides an elaborate mechanism for the Parliamentary consideration of the outcome of the negotiations between the UK Government and the European Union, the principal features of which are as follows:

  • Section 13 prevents ratification of the withdrawal agreement unless:
    • a Minister of the Crown has laid a statement before each House of Parliament
    • the withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons and made available for consideration by the House of Lords and
    • an Act of Parliament has been passed dealing with implementation of the withdrawal agreement
  • If the House of Commons rejects the motion to approve the negotiated agreement, a Minister must make a statement on next steps, which must be made available for consideration by both Houses.
  • If the Prime Minister makes a statement on or before 21 January 2019 that no withdrawal agreement can be reached, a Minister must make a statement on next steps for consideration in both Houses.
  • If on 21 January 2019 there is no withdrawal agreement in principle, a Minister must make a statement on next steps for consideration by both Houses.
  • The latest plan is for the deal agreed between the Government and EU negotiators—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—to be put to the House of Lords on 10 December and to the House of Commons on 11 December (following a five-day debate).

[Updated 28 November 2018]


Is Brexit actually going to happen?

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.

The Court of Justice of the European Union has now been asked to rule whether the UK could unilaterally withdraw its Article 50 notice to leave the EU; if the Court decides that this is a possibility, it would be theoretically possible for the UK to insist on remaining in the EU on its present terms. Whether that is a practical possibility is again a matter of politics not law.

[Updated 28 November 2018]


How hard might a hard Brexit be?

Negotiations on the terms of a deal in which the UK will leave the EU were agreed in November 2018 with the EU27. 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.

The terms of a future relationship with the EU remain to be negotiated, in accordance with the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom. The deal has to be put to each House of Parliament and depending on the outcome, the UK Government may be unable to proceed with it. 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.

Institutions in the EU and UK are making contingency plans for the possibility of a hard Brexit; and the possibility of no withdrawal agreement is now explicitly recognised on the face of the EU (Withdrawal) Act 2018 – s.13.

[Updated 28 November 2018]

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


How soft might a soft Brexit be?

It is conceivable that the eventual 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 what would be, in effect, continued membership of the Single Market and/or continued membership of the European Economic Area, and there are other possibilities and permutations.

Since 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, unless that agreement fails to be approved by both Houses of Parliament, the parameters of Brexit during the transitional implementation period are now known; but how hard or soft the eventual Brexit following that period remains open to continuing negotiation.

[Updated 28 November 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.

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”.

[Updated 28 November 2018]

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


What’s the latest timetable for Brexit?

The key 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.

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”.

[Updated 28 November 2018]

Archive of updates: what’s the latest timetable for Brexit?


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) Act 2018. The Government has also undertaken to introduce into Parliament (perhaps at some point in late 2018) a Bill provisionally entitled the Withdrawal Agreement and Implementation Bill which is expected to cover the contents of the Withdrawal Agreement, including issues such as an agreement on citizens’ rights, any financial settlement, and the details of an implementation period agreed between both sides.

The Government have said that ‘bringing forward this Bill means that Parliament will be given time to debate, scrutinise and vote on the final agreement we strike with the EU. It comes over and above the undertaking the Government has already made that it will give Parliament a vote on the final deal as soon as possible after the deal is agreed’. (That meaningful vote is now provided for in section 13 of the EU (Withdrawal) Act 2018).

The overseas territories of the UK are also in the process of passing legislation reflecting their position as a result of the withdrawal.

The agreement on the terms of withdrawal is now embodied in 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; there will need to be a further agreement dealing with the future relationship between the UK and the EU after the transitional implementation period, based on the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

[Updated 28 November 2018]

Archive of updates: how will the final withdrawal agreement be implemented?


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.

The Scottish Parliament and the National Assembly for Wales have now both passed Acts effectively mirroring the EU (Withdrawal) Bill in the UK Parliament, but applying to legislation in Scotland and Wales.  Both Acts were referred to the Supreme Court by the UK Government on grounds of being beyond the legislative competence of the two devolved legislatures. The case relating to the Wales Bill has now been withdrawn, and the Law Derived from the European Union (Wales) Act 2018 received Royal Assent on 6 June 2018. The case concerning the Scottish Bill was heard by the Supreme Court in July 2018.

Politically, Northern Ireland and its border and relationship with the Republic of Ireland remain among the most contentious and intractable issues of Brexit. From a technical legal perspective, again, no specific mechanisms for giving Northern Ireland a special status have yet been given general acceptance. 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 contains a separate protocol on Northern Ireland which “sets out arrangements necessary to address the unique circumstances on the island of Ireland, maintain the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions”.

(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 Scottish Parliament refused to pass a Legislative Consent Motion for the EU (Withdrawal) Bill. As a matter of law, this does not affect the validity of the EU (Withdrawal) Act 2018.

[Updated 28 November 2018]

Archive of updates: what does Brexit mean for Scotland, Wales and Northern Ireland?


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 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.

If the UK remains in a Customs Union with the EU after Brexit, a likely (although not inevitable) effect of that would be to prevent the UK from negotiating other free-standing trade deals.

[Updated 28 November 2018]

Archive of updates: how will the UK do international business after Brexit?


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 EU (Withdrawal) Act 2018 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 final withdrawal agreement have been settled.

Under 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, EU law will apply more or less entirely during the transitional implementation period.

[Updated 28 November 2018]

Archive of updates: will any EU law apply in the UK after Brexit?


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

Section 6 of the EU (Withdrawal) Act 2018 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.

Articles 4 and 5 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 provide: “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”.

[Updated 28 November 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.

[Reviewed 28 November 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.

[Reviewed 28 November 2018]

This article is updated as and when developments unfold relating to Brexit. 

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