A slight glitch in the otherwise seamless delivery of Brexit

In legal terms, the transposition of “retained EU law” onto the UK statute book at 23:00 on 29 March 2019 has always been a revolutionary aspect of Brexit.

  • At that moment, around 8,000 EU regulations would become UK statute law.
  • CJEU case law would acquire the same status as UK Supreme Court judgments.
  • Thousands of existing pieces of UK legislation, both primary and secondary, would have to be corrected to “work” after Brexit.
  • Hundreds of new statutory instruments would be needed for that work of correction and amendment.

We’ve discussed this many times at Osborne Clarke.

The Lords, suddenly popular

The vehicle for this legislative revolution is the European Union (Withdrawal) Bill.

That Bill has now finished its second reading in the House of Lords, and has emerged as intact as a wet newspaper shared between a puppy and toddler.

Here’s a list by the Labour Lords detailing the 15 defeats suffered by the government on the Bill.

…and that means big battles in the Commons when the Bill comes back to the elected chamber

Some of the amends passed in the Lords will be, as the cliché has it, bitterly fought in the Commons. It is easy to see that the government could be defeated on the “Customs Union”, “Mandating negotiations” or “Environmental protections” amendments.

And if there is a transition period, the Bill is not even needed – yet

As we know, the UK and EU have agreed, politically, that there will be a transition period between 29 March 2019 and 31 December 2020.

During the transition period, EU law and regulation will apply in and to the UK in the same way that it does in the remaining (!) EU27 Member States. See Article 122 of the draft Withdrawal Agreement.

The result: if there is a transition period, the UK doesn’t actually need to introduce the concept of “retained EU law” onto the UK statute book at the date of Brexit. Indeed, it would be confusing if it did.

So why bother

In that light, and given the political dangers for the government of defeat on the European Union (Withdrawal) Bill, why even bother to bring it back to the Commons?

And it is interesting that the government is not saying when it will bring the Bill back to the Commons.

Needed in case of a cliff edge

If negotiations fail and there is no transition period – and we end up with a dramatic “cliff edge” Brexit – the Bill will have to be in law by Brexit day on 29 March 2019 (and well before that date). Because that cliff edge Brexit would require “retained EU law” to be on the UK statute book by Brexit day, in order to avoid legal chaos.

So the government is bothering, because it has to keep persisting with the Bill, as an insurance policy against no transition period.

Which means…

If the government, fearing defeat on key provisions, delays bringing the Bill – and the Trade and Customs Bills – back to the Commons until after the summer, that means turning the end of 2018 into one of the busiest legislative periods since the Attlee government created the NHS and nationalised sectors of the economy. (But perhaps without the accompanying spirit of national optimism.)

The risk would then be that the government could not get all the required Brexit legislation through in the narrow time window which would then be left before Brexit day.

So all attention is on customs arrangements

Which is why the government is focused on resolving the impasse over future customs arrangements. Failure to resolve that impasse means failure to agree the Withdrawal Agreement, which in turn means no transition period.

And to take us back to the beginning, if the Withdrawal Agreement is agreed and the transition period does become a legal certainty, it will be interesting to see whether the government then drops the European Union (Withdrawal) Bill, and delays the Brexit legal revolution until the end of the transition period.