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Insight

The legislative journey to Brexit

Sarah Ellson
16/07/2018
The jigsaw of legislation, diplomacy and treaties which need to come together to enable the UK's exit from the EU is complex and it often feels like we are still barely beyond sorting out the edge pieces and certainly that we are working without a finished image.

The jigsaw of legislation, diplomacy and treaties which need to come together to enable the UK's exit from the EU is complex and it often feels like we are still barely beyond sorting out the edge pieces and certainly that we are working without a finished image.

In the UK Parliament has now passed the European Union (Withdrawal) Act 2018 which was finally given Royal Assent on 26 June 2018 after the high profile amendments and defeats as the Bill "ping-ponged" between the Lords and the Commons.  The Act will repeal the European Communities Act 1972 on "exit day" and helps to ensure that we are not left in a legal vacuum with EU derived law being retained on exit day.  It allows for the painstaking process of working through all of it to determine precisely how and whether it will be ultimately part of our laws.

On 12 July 2018 the Government published its White Paper on "The Future Relationship between the UK and the European Union".  Undoubtedly all those interested in our exit needed to see this document, and many consider it to be long overdue in providing a clear statement of the Government's desired outcomes.  The White Paper does not of course tell us where our relationship will in fact end up as this will of course be subject to the resumed negotiations with the EU27.  The White Paper is not something MPs get to vote on either, although it will be the source of much debate both in and outside Parliament.  White papers are "for information" and do not have any formal legal weight; they are often released to enable and promote debate before a formal parliamentary bill.  After the Supreme Court decision that required the Government to bring forward legislation before it could trigger Article 50 there was a white paper issued (on 30 March 2017 legislating for the UK's withdrawal from the EU) but that focused on some of the issues the "Great Repeal Bill" (later to become the EU Withdrawal Bill/Act) had to address.

In terms of legislation still to be passed two significant Bills remain outstanding, the Trade Bill and the "Customs" Bill (formally the Taxation (Cross Border Trade) Bill).  The Trade Bill aims to facilitate the transition of the EU's Trade Agreements into UK agreements because this may require amendments to our domestic legislation to implement.  The Bill does not, and could not, actually re-cast the Trade Agreements but gives the necessary powers to support that, if it can be agreed as part of the negotiations.  This is simply again to support a transition period before new Trading arrangements for the UK are in place.  It does not address any aspect of new Trade Agreements which the UK will seek to secure after exiting the EU.  The Trade Bill is expected to return to the House of Commons for a vote before the summer recess although we do not currently have a date for this.

The Customs Bill will be debated on Monday 16 July 2018.  This is the legislation to which both the European Research Group, (fronted by Jacob Rees Mogg) and the DUP are hoping to attach amendments. Having now seen greater detail of the Government's position (after the Chequers meeting and the latest white paper) the ERG want to effectively make impossible the idea of a "facilitated customs arrangement".  The facilitated customs arrangement would, according to the new white paper "remove the need for customs checks and controls between the UK and the EU as if they were a combined customs territory, which would enable the UK to control its own tariffs for trade with the rest of the world and ensure businesses paid the right or no tariff, becoming operational in stages as both sides complete the necessary preparations" also referred to as "frictionless trade".  The ERG is calling for the UK to refuse to collect duty for the EU unless member states do likewise.

The DUP amendment seeks a legal commitment to there never being a border in the Irish Sea, which would rule out any option of Northern Ireland remaining inside a customs union.  As we all know the mathematics of the Government's majority are slim and usually rely on DUP support.  However to succeed with the amendments proposed for Monday's debate would also require support from large numbers of Labour or other opposition MPs.

Finally then on the legislative jigsaw, it is important to remember that there are two negotiations going on with the EU.  The first is the exit (or divorce) agreement the terms on which we leave.  This is not yet agreed and is the agreement that must be in place to avoid the "no deal" scenario on 29 March 2019 when the 2 year Article 50 process is due to end.  However as we have repeatedly heard the exit agreement is fundamentally linked to an agreement, in broad but important terms, about the future relationship between the UK and the EU (this will not be the actual Trade Agreement with the EU which will be thrashed out in the two or more years of transition) but will inform key aspects of that Agreement.  This future framework is the focus of current discussions. 

The meaningful vote that Parliament has been promised is intended to cover both the exit agreement and the new deal in the form of a motion before both Houses of Parliament either to accept the agreements or to walk away.  Further debate and scrutiny might be afforded by the process under the Constitutional Reform and Governance Act 2010 whereby before signing the Treaty to Exit the EU it should be laid before both Houses and not voted against.

The opportunity for debate, scrutiny and rebellion will continue in the coming months.

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