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Home / News and Insights / Blogs / Great Repeal Bill / 42: Great Repeal Bill – Red (?), gold and green

David Mundy
Partner & Parliamentary Agent

Aaron Nelson
Legal Director

With a year to go to Brexit on 29 March 2019, let’s have a quick review of where the Brexit negotiations have got to and set out what might happen in the next year.

How are the Brexit negotiations going?

It can be easy to lose track of the actual progress being made in the flurry of speeches, leaks, negotiation meetings and summits which surround Brexit, so let’s focus on the substance.

A good starting point, to understand how it all fits together, is to recall the EU27’s insistence that there was to be a ‘phased approach’ to the negotiations: the so-called ‘divorce issues’ (comprising the financial settlement, citizen’s rights and the Northern Irish border) were to be addressed in Phase 1, before moving to discuss the UK’s future relationship with the EU27 in Phase 2. The UK initially wanted to discuss the future relationship from the start, but ultimately accepted the EU27’s preferred approach.

On 8 December 2017, Phase 1 of the Brexit negotiations concluded (after a last minute hitch involving the DUP) with the Joint Report from the negotiators of the European Union and the United Kingdom Government. The EU27 declared itself satisfied that ‘sufficient progress‘ had been made during Phase 1 of the negotiations to allow talks to move to the next stage.

The next stage turned out to be Phase 2A, because the UK had (on 22 September 2017, in the PM’s Florence speech), requested an ‘implementation period’ to ‘prepare and implement the new processes and new systems that will underpin that future partnership’.

The EU27 swiftly renamed it a ‘transition period’, and decided the terms needed to be negotiated before starting on the future relationship. The European Council’s negotiating directives on the transition period were adopted by the Council (Article 50) on 29 January 2018 (discussed here).

Then, on 28 February 2018, the European Commission published a draft Withdrawal Agreement which:

  • sought to translate into legal terms December’s Joint Report on Phase 1;
  • proposed text for those outstanding withdrawal issues which are mentioned, but not set out in detail, in the Joint Report; and
  • integrated text on the transition period, based on January’s negotiating directives.

On 19 March, the UK and the EU announced they had agreed the terms of the transition period to expire on 31 December 2020. A coloured version of the Withdrawal Agreement was published. This showed some parts of the text were agreed (highlighted in green, including the transition provisions), some where the policy was agreed but the wording was not (highlighted yellow) and some parts where there was no agreement as yet (not highlighted – although they should surely have been highlighted red?).

The Withdrawal Agreement consists of six parts and two protocols:

  • introductory provisions (Part One, articles 1 to 7);
  • citizens’ rights (Part Two, articles 8 to 35);
  • ‘separation provisions’, covering issues such as goods placed on the market before the withdrawal date, customs procedures, police and judicial cooperation, data and public procurement, Euratom, judicial and administrative procedures (Part Three, articles 36 to 120);
  • transitional arrangements (Part Four, articles 121 to 126);
  • financial settlement (Part Five, articles 127 to 150);
  • institutional provisions (Part Six, articles 151 to 168);
  • a protocol on Ireland / Northern Ireland, which would implement the ‘backstop’ solution set out in para 49 of December’s Joint Report, namely, that: •the UK’s ‘intention is to avoid a hard border through the overall EU-UK relationship’;
  • ‘should this not be possible’, the UK will ‘propose specific solutions to address the unique circumstances of the island of Ireland’;
  • ‘in the absence of agreed solutions’ the UK will ‘maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement’; and
  • a protocol relating to the Sovereign Base Areas in Cyprus.

On 23 March 2018, the text was approved by the European Council and sent to the UK government (this version).

That concludes Phase 2A and allows negotiations to begin on Phase 2B, namely, the UK and EU27’s ‘future relationship’ – the ‘broadest and deepest possible partnership’, as the PM put it in her Mansion House speech). The European Council has published its negotiating guidelines for this next stage.

So what happens between now and Brexit?

It is, of course, impossible to say exactly what will happen, but there are milestones which we can predict with some certainty.

First, the EU (Withdrawal) Bill will become law. It finishes its Committee stage in the Lords this week, with Report stage timetabled for May. From the Committee stage debates, we can expect a number of government amendments on Report to address the more technical aspects of the Bill, such as how EU-retained law is dealt with, the extent Parliamentary scrutiny and devolution issues. But we anticipate there will also be at least one significant defeat for the government – our best guess is on the process and timing of Parliamentary approval required for the withdrawal agreement and/or the final deal – but there may be many more. The Bill will then enter ‘ping pong’ – the to and fro of amendments to Bills between the Commons and the Lords – which will be a period of intense media scrutiny, heated debate and, we expect, at least one further government defeat.

As soon as the Bill has received Royal Assent, Parliament will be deluged with the greatest ever quantity of ‘correcting’ SIs it has ever been asked to pass in a session. The Scrutiny Committees (operating the regime established by the Bill) will no doubt complain that they cannot give them all proper consideration but we consider their complaints are unlikely to gain much traction in Whitehall. The vast majority of SI’s are therefore likely to pass without comment. All parts of the economy (public sector, regulatory and private business) will also need to keep a close eye on the SI’s as they appear to ensure that the ‘corrections’ being made are necessary.

Parliament will also consider a number of other Brexit bills. Three are already underway:

  • the Taxation (Cross-border Trade) Bill, to legislate for a new Customs regime by March 2019;
  • the Trade Bill, to build a future trade policy for the UK once we leave the EU; and
  • the Nuclear Safeguards Bill, to create a legal framework for a domestic nuclear safeguards regime to operate in the UK, to replace that currently provided through the UK’s membership Euratom.

Still to come are the Immigration, Agriculture, Fisheries, and International Sanctions Bills. We predict these too will become law as the UK prepares for Brexit.

The UK/EU negotiations on the ‘future relationship’ (already started) will continue throughout the summer. During this period, we anticipate there will be considerable speculation (in Parliament by backbenchers and in the media) about the ‘concessions’ the UK may or may not be making, and whether the government’s ‘red lines’ are being crossed. David Davis (or the PM) will approach various Member States and emphasise the particular benefits which the UK is seeking to extend to that Member State through the ‘future relationship’, while EU negotiators will state that the UK cannot cherry pick all the benefits of a Member State without the obligations of membership. Liam Fox and Boris Johnson will no doubt rack up the air miles around the world as they seek to negotiate new trade deals.

The negotiations will probably result in a high-level political agreement in the small hours before an EU summit in October. We suggest that everything will be agreed in principle – although officials will subsequently spend years working out what all the details mean. Our best guess is that the UK will manage to negotiate preferential access for some key areas of the economy, such as financial services, but will give way on others, which are perhaps more emotive but less lucrative, such as fishing. On the Irish border, we suggest the question may well be fudged on a temporal basis (kicked down the road again, if you like), with the UK and EU perhaps agreeing that while the new UK/EU customs arrangement will apply to the whole of the UK (satisfying the DUP), trade across the Irish border will continue to operate as during the transition period (ie regulatory alignment/no regulatory divergence) pending finalisation of how the new customs arrangement can be implemented in practice along that border.

Back in Parliament, we can expect the EU (Withdrawal Agreement and Implementation) Bill will be introduced in October or November to give effect to that agreement. Talk of a second referendum will probably reach fever pitch for a week or so prior to MPs’ crucial vote on accepting the deal, but we predict Tory MPs won’t rebel in sufficient numbers and it will pass with support from the DUP and Labour Brexiteers. A last-minute judicial review claim by despondent Leave campaigners will probably result, but we anticipate that being rejected by the courts.

The morning of 29 March 2019 is therefore very likely to dawn with the UK entering the transition period: the Daily Mail will probably proclaim it ‘independence day’, the Guardian ‘the beginning of the end’.

Enjoying the blog? Why not try the Great Repeal Bill Blog playlist on Spotify.
‘Loving would be easy if your colours were like my dreams – red gold and green, red gold and green’ (Culture Club, Karma Chameleon)

Written with Aaron Nelson

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