Blog: Brexit to do list…

Lynda Towers

Public law expert Lynda Towers provides a realistic overview of where we are on the path to Brexit.

For some of us there is something comforting about putting together a list of things which need to be done and by when. There is then the satisfaction of ticking the items off as done and seeing the list reduce. However perhaps this might not be the best time for those in Whitehall and Holyrood to write down their Brexit “to do” list as a means of cheering themselves up.

We always knew that timescales were going to be tight to achieve all that was needed for Brexit to work. We now have agreement on a transitional period to take us through to December 2020 but the UK government still states we are leaving the EU on 29 March 2019. So what are the pinch points and critical dates before March 2019?

We are fast approaching Parliamentary recesses and “relaxing” summer breaks. Holyrood rises on 30 June until 2 September. Westminster is off from 24 July until 4 September. MPs are then off again for the party conferences from 13 September until 9 October. Brussels shuts down for August. This does not leave a lot of parliamentary time before the end of October by which time the EU expects a final agreed version of the Withdrawal Agreement to be ready to go to the European Parliament for consideration.

They would in practice like agreement by the EU meeting on 28 June, but that is looking less likely at the moment since the UK position on many matters has yet to be clarified. The Withdrawal Agreement may now be more green and orange that white, reflecting what has been agreed, but the issues still in dispute are all difficult. It is not clear at present what will be an acceptable solution to all parties on the issue of the NI/Irish border. Whether to have a customs union or not permeates so many areas.

However we are assured that a White paper setting out the UK position on the customs union proposals (or not), on future security, financial services, aviation and fisheries is imminent. Small working groups of Cabinet members are considering two “customs” options although the EU has already suggested neither option is acceptable.

Where are we in relation to the supporting legislation? The EU (Withdrawal) Bill is out of the House of Lords but no date has yet been set for “Ping Pong” when the Commons and Lords send the bill back and forward between the two Houses to reach an agreed position on amendments. Some of the Lords amendments are substantial and may be problematic for the government who may or may not have a majority in the Commons to remove those amendments. The Tax (Cross-Border Trade) Bill is at Report stage in the Commons but no date has been set as yet.

The Trade Bill is in the same position with no date set. The Nuclear Safeguards Bill is in ping pong with the Lords and a date has been set of 6 June. There is thinking that the government may be holding off because of concerns around whether they may be defeated on amendments. We have still seen no bills on agriculture, fisheries, immigration or customs. The Immigration White Paper, needed before any bill, is not anticipated until the autumn. We also understand there will need to be budget bills to support these proposals. We are beginning to look at a legislative pile up.

At this stage it is not clear how many of these bills will need to be in force by 29 March 2019 because we are not clear on the content, but it is difficult to see how a final agreement can be reached on the exit proposals or the future relationship without some understanding of the legislative proposals in those areas.

This is particularly important in the context of devolution where there is outstanding disagreement between Holyrood and Westminster as to how certain of the returning powers will be dealt with and whether they will be within the legislative competence of the Scottish government immediately or whether some can be dealt with initially by Westminster on a UK basis. The Supreme Court will be considering the competence of the United Kingdom Withdrawal from the European Union (Legal Continuity) (Scotland) Bill on 24 July but that may not answer the basic question on what is devolved, to whom and when.

In Scotland the report of the Sustainable Growth Commission has just been published setting out the economic case for an independent Scotland. The First Minister has said that when the Brexit settlement and impact is clear in the autumn, she will consider the case for a further independence referendum. That may be an optimistic time aspiration in the light of what still needs to be agreed. Consideration of a further referendum may prove yet another challenge for Brexit watchers as to how it might impact wider Brexit discussions.

Finally, the UK government has promised a “meaningful vote” to Westminster MPs on the Withdrawal Agreement by end October although that in itself is still an undefined promise as to what it will mean, what impact any vote might have and any legal effect.

There is very little time left from a practical point of view to pass the primary legislation required, never mind putting in place the nuts and bolts to be provided by the underpinning secondary legislation. The law of unintended consequences will be standing there as a long shadow in the background. Serious policy decisions and positions have yet to be reached. Businesses have to make future development and investment decisions now, against the legislative and constitutional uncertainty.

My advice to those looking forward to summer recesses all over the UK and Europe is enjoy whatever break you manage to secure. Secondly, do not write a “Brexit to do” before you go. The prospect of all the work which will be facing you on your return may well ruin your holiday!

Lynda Towers is director of public law at Morton Fraser