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Brexit

Brexit FAQs Update: what’s the latest?

Daniel Greenberg

27 Feb 2018

Image credit: REUTERS/Stringer

As the date originally set for the UK to leave the European Union on 29 March 2019 draws near, uncertainty continues over whether it will happen on that date and, if so, exactly what it will mean. 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).

What Brexit legislation has been passed so far?

The European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June 2018, is being relied upon to pass a series of statutory instruments.

Several hundred statutory instruments have been made: they will come into force on exit day, and they are all so far predicated on a ‘no deal’ Brexit.

If a deal with the EU is agreed, it would become necessary to make an entirely different series of statutory instruments giving effect to the terms of the deal. In principle, it would be possible to pass those statutory instruments relying on section 9 of the Withdrawal Act, which confers powers to implement any withdrawal agreement concluded: but it applies ‘subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the EU’. Therefore, it cannot be used without a new Act, which could confer its own powers to make subordinate legislation tailored to the terms of the eventual agreement.

[Updated 4 March 2019]

Archive of updates: what Brexit legislation has been passed so far?


What other legislation will be required?

A number of sectoral Brexit Bills have been passed including: Nuclear Safeguards Act 2018; Haulage Permits and Trailer Registration Act 2018; and, Taxation (Cross-border Trade) Act 2018, which provides for the UK to create a new customs regime. Each Act contains provisions and confers powers designed to deal with a range of practical Brexit outcomes. There are also other relevant Government Bills, notably the Trade Bill 2017-19, still in progress. The Trade Bill will provide key measures that are required to build a future trade policy for the UK upon leaving the EU.

As explained above, there will also be a range of subordinate legislation dealing with aspects of the Brexit process. The government have suggested that something in the region of 1,000 additional statutory instruments may be required. Although the flow has begun on a contingency basis, their provisions are predicated on a ‘no-deal’ Brexit and would need to be replaced to give effect to a deal.

[Updated 4 March 2019]

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 for some time, and the pressure continues to grow from a number of sources. The government’s present position remains that there will be no second referendum on Brexit.

There is no longer time to hold a second referendum before Brexit happens automatically on 29 March 2019—in accordance with the original Article 50 letter triggering the Brexit process. If the EU institutions were to grant an extension of the time for Brexit (which is possible under Article 50) it might become possible to hold a referendum, in which one question could be whether the entire process should be cancelled unilaterally by the UK government (which the Court of Justice of the European Union has ruled is lawful at EU law).

[Updated 4 March 2019]

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


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 has become section 13 of the Act.

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 section 13 process has been partly overtaken by the passing of specified deadlines mentioned in it, and on 14 February 2019 the government’s motion on the Brexit process was defeated by 303 to 258. The latest proposal by government is for a new vote to be held by 12 March 2019.

[Updated 4 March 2019]

Archive of updates: how is the ‘meaningful vote’ going to be provided for?


Is Brexit actually going to happen?

The dynamics of Brexit changed significantly on 10 December 2018 when the Court of Justice of the European Union ruled that the UK can cancel Brexit without the permission of the other 27 EU members and without altering the terms of Britain’s membership, by unilaterally withdrawing the Article 50 letter that triggered the Brexit process.

As a result, there are now the following ways in which Brexit could be cancelled or postponed:

  1. the UK Government could withdraw the Article 50 letter;
  2. the EU Member States could agree to an extension of the Brexit process, which in principle the duration of the extension could be as long as the States grant (and could, in theory, even be indefinite); or
  3. a Brexit deal could be agreed that would contain sufficient transitional or permanent acceptance of continued EU law.

On 26 February 2019 Prime Minister Theresa May proposed that if the Withdrawal Agreement so far settled with the EU is rejected by Parliament (for the second time) and if Parliament clearly does not want a ‘no-deal’ Brexit, the government will facilitate a vote in Parliament on an extension to the Brexit process.

[Updated 4 March 2019]

Archive of updates: is Brexit actually going to happen?


How hard might a hard Brexit be?

It is 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 on 29 March 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 in all Member States have for some time been increasing 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, is increasingly perceived as a practical possibility.

[Updated 4 March 2019]

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


How soft might a soft Brexit be?

Though not likely before the current departure date of 29 March 2019, 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.

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, endorsed by leaders at a special meeting of the European Council on 25 November 2018, sets parameters of Brexit during the transitional implementation period; but how hard or soft the eventual Brexit following that period remains open to continuing negotiation. (The Agreement has so far not been approved by the Houses of Parliament, and cannot come into force unless and until that happens.)

[Updated 4 March 2019]

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.”

(The Agreement has so far not been approved by the Houses of Parliament, and cannot come into force unless and until that happens.)

[Updated 4 March 2019]

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”.

It is increasingly being suggested as a practical political possibility that the EU Member States might permit an extension of the Brexit process by agreeing to postpone the exit day, which is permissible under Article 50; but messages on how likely that is vary between different EU Member States, and from time to time.

[Updated 4 March 2019]

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


How will any approved Withdrawal Agreement be implemented?

If the Withdrawal Agreement settled between the UK government and the EU is approved by Parliament, 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 little of that is now likely to be achieved by subordinate legislation under the EU (Withdrawal) Act 2018. The government undertook in early 2018 to introduce into Parliament (originally expected 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 time available for the introduction and passage of a Withdrawal Agreement and Implementation Bill is now, however, so tight given a 29 March Brexit that it seems almost impossible; technically an emergency Bill could be taken through both Houses before that date following approval of the Withdrawal Agreement by Parliament—but in practice it seems unlikely.

The overseas territories of the UK are also in the process of passing, or have passed, 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 4 March 2019]

Archive of updates: how will any approved 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 (now the 2018 Act) 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 was withdrawn in return for agreed modifications to the EU (Withdrawal) Bill, 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—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64. Judgment was given on 13 December 2018. The Supreme Court gave a unanimous judgment. It found that the whole of the Scottish Bill would not be outside the legislative competence of the Scottish Parliament. However, section 17 would be outside the legislative competence of the Parliament because it would modify the Scotland Act and, at least in part, specified sections referred to would be outside the competence of the Scottish Parliament because they would modify provisions of the UK Withdrawal Act. So far, the Bill has not been renewed in the Scottish Parliament in revised form.

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).

[Updated 4 March 2019]

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


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 UK leaves the EU without a deal on 29 March 2019, 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 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.

The UK government published an update on progress on specific deal negotiations on 21 February 2019 in the following terms:

“We have already secured agreements with countries that account for more than a quarter of UK trade covered by these agreements. This includes signing agreements with Switzerland, which is worth over 20 percent in terms of value of these agreements, as well as Chile, the Faroe Islands, Eastern and Southern Africa, Israel, and the Palestinian Authority.

“We have also signed Mutual Recognition Agreements with the United States of America, Australia and New Zealand, which ensures that businesses don’t face additional bureaucracy and allows them to continue trading as freely as they do today after we leave the European Union. Many of the other trade agreements are at an advanced stage, and the UK Government will be signing more in the coming days and weeks”.

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 4 March 2019]

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’ 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 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 any approved 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 4 March 2019]

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 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 4 March 2019]

Archive of updates: will the EU Court of Justice have influence in the UK after Brexit?


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.

[Reviewed 4 March 2019]


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 4 March 2019]

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

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