Legislation and the Brexit transition period

What happens to all the Brexit legislation produced by the Government now we have officially left the EU? Has all the amending legislation on EU Exit come into force? Paul Clarke clarifies what happens to UK legislation during the Implementation Period.

Business and other organisations trying to keep track of legislation in 2019 had a difficult task. The Government was planning for the UK to leave the EU on 29 March 2019, then it moved the date to 12 April and finally to 31 October 2019, as Parliament continued to refuse the various deals brought forward by the then Prime Minister Theresa May.

Each time the date changed, legislators had a fresh problem as they were busily issuing dozens of sets of regulations (in the form of statutory instruments or SIs) which either amended existing legislation in order to take account of the decision to leave the EU or made arrangements to carry forward as domestic legislation pieces of EU law that would still be needed after Brexit.

Setting the date

All such legislation requires a date on which it will come into force and, at first, the date given was that on which the Government expected the country to leave the EU, 29 March 2019 in the first instance. This was the case with the Waste (Miscellaneous Amendments) (EU Exit) (No 2) Regulations 2019, for example, and with many others such as the Drivers’ Hours and Tachographs (Amendment etc) (EU Exit) Regulations 2019.

As it became apparent that the date for leaving the EU would be missed, this posed an extra problem as the implementation dates had to be changed on these various items of legislation.

The solution was to begin using the open-ended term “Exit Day” as the date when the EU-related SIs would come into force. This appeared on the Construction Products (Amendment, etc) (EU Exit) Regulations 2019, and on many more including the Ship Recycling (Facilities and Requirements for Hazardous Materials on Ships) (Amendment) (EU Exit) Regulations 2019.

Get Brexit done

All this changed when the new Prime Minister, Boris Johnson, won a large majority at the December 2019 general election under the banner of “Get Brexit Done”. Within days his Withdrawal Agreement had been agreed by Parliament and the date for leaving the EU was fixed as 31 January 2020.

The details were inserted into the European Union (Withdrawal Agreement) Act 2020 (the 100 pages of which can be read at www.legislation.gov.uk . Once that Act was signed by the Queen, the letter marking the UK’s formal withdrawal from the Union was delivered to the European Commission in Brussels. Approval by the European Parliament was something of a formality (although several leading members expressed their sadness at the decision) and the Union Jack was lowered from its position outside the Parliament building and given to the EU museum.

All change?

Having left the EU on 31 January, therefore, the UK presumably began its new life of sovereignty and freedom on 1 February? Well, not quite.

The Withdrawal Agreement included a transition period (sometimes referred to by the Government as the Implementation Period) to allow for the two sides to remain closely linked while negotiations started on their future relationship in key areas including trade, financial services, security and fisheries. During this period, which will last until the end of December 2020, the UK will remain a member of the EU Single Market and of its Customs Union. It will be required to comply with all EU legislation and will not be allowed to deviate away from agreed EU standards and rules.

What it will not have is any representation in the institutions of the Union: British MEPs have had to leave the European Parliament; there is no longer a British member of the European Commission and UK Ministers will not be present at future meetings of the EU Council where legislation is debated and agreed upon.

Exit Day

The question remains, what happens to all the many SIs now on the statute book (and in the Legislation Tracker) which are due to come into force on “Exit Day”? That problem has been solved by the European Union (Withdrawal Agreement) Act 2020 (Commencement No. 1) Regulations 2020 (SI 202/75) (which were published on 30 January 2020 and can be found at http://www.legislation.gov.uk/uksi/2020/75/pdfs/uksi_20200075_en.pdf.

More specifically, it has been addressed by Regulation 3, which brings into force s.41(4) of the Act in relation to paragraph 1(1) and (2) of Schedule 5. This provides for “exit day” to be read as “IP completion day” in commencement dates for subordinate legislation, except where this is expressly disapplied. IP, of course, is the abbreviation for Implementation Period.

As to whether 1 January 2021 will mark the final completion of Brexit, it should be noted that the transition period, as described in the Withdrawal Agreement, could be extended for one or possibly two years if this proved necessary in order to complete negotiations on the various deals between the two sides. However, Boris Johnson committed himself, during the election campaign, to not taking up that option. He then had that promise set into the European Union (Withdrawal Agreement) Act 2020.

Given all the twists and turns since the 2016 referendum, it would be foolish to think that the latest date is set in stone. Even with that clause in the 2020 Act, the Prime Minister has such a large majority, he could, if circumstances dictate, go back to Parliament to explain why a longer period was needed after all. A change would then only require an amending SI to be issued.

Or, there could conceivably be a second transition period, if a deal is agreed that would mean the UK moving away from alignment with the EU and thus requiring companies to begin adapting to numerous new rules, procedures and paperwork. With talks between the two sides not set to start until late February, and having to finish by late October in order to give time for any deal to be ratified by the UK and European Parliaments, there is a great deal to do in a very short time period.

Watch this space!