What legislation is required for a ‘no deal’ Brexit?

There is mounting speculation about Parliament’s ability to enact the legislation to enable Brexit. The European Union (Withdrawal Agreement) Bill is expected to implement the Withdrawal Agreement negotiated between the EU and UK. If Parliament rejects that Agreement, the UK will exit the EU on 29 March 2019 without a deal. But a ‘no deal’ scenario also requires legislation to ensure the UK has measures in place to replace EU legislation, which will no longer apply.

Brexit-related Acts in a ‘no deal’ scenario

There are 13 Bills and draft Bills associated with the process of exiting the EU. Parliament has enacted five of these: the European Union (Withdrawal) Act 2018; the Sanctions and Anti-Money Laundering Act 2018; the Haulage Permits and Trailer Registration Act 2018; the Nuclear Safeguards Act 2018; and the Taxation (Cross-border Trade) Act 2018. Enacting the remaining eight Bills before a ‘no deal’ exit would be desirable, but which of the Bills are necessary and which might be considered optional?

The remaining proposed Bills

Trade Bill 2017-19

Amongst other things, the Trade Bill sets up the Trade Remedies Authority which will protect UK business against unfair trade by other countries – so called “dumping”. On 6 February the Secretary of State for International Trade, Dr Liam Fox, told the International Trade Committee that he was “increasingly confident” that the Bill will pass. He stated that, “the Government has a range of contingency plans” if the Bill is not enacted. But he cautioned that, “even if we were able to put temporary measures in place we would still need the Trade Bill to give us long-term assurances.” The Committee has asked for more details regarding the Government’s contingency plans.

Agriculture Bill 2017-19

The Agriculture Bill provides the legislative framework for a seven-year agricultural transition period moving from the current Common Agricultural Policy arrangements towards brand new policy and payment approaches in England and Wales. The passage of the Bill before ‘exit day’ would facilitate a smooth transition to the new framework. 

The Bill also contains provisions to secure compliance with the WTO Agreement on Agriculture.

Fisheries Bill 2017-19

In a ‘no deal’ Brexit scenario, the UK would become an independent coastal state from March 2019. It would no longer be subject to the Common Fisheries Policy (CFP) and would take over responsibility for its Exclusive Economic Zone. This would enable the UK to determine fishing opportunities in its waters. The Fisheries Bill gives the Secretary of State the ability to set and distribute fishing opportunities and revokes EU vessel access to UK waters. It also excludes foreign unlicensed fishing vessels from UK waters.

In addition, the Common Fisheries Policy (Amendment etc.) (EU Exit) Draft Regulations – as currently drafted – remove several conservation measures. It is expected that these will be replaced by provisions in the Fisheries Bill. If the Bill is not enacted, and the CFP no longer applied, there would be concerns about a lack of regulation in these areas.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19

The Immigration and Social Security Co-ordination Bill does three things: it repeals retained EU law relating to free movement and brings EEA nationals and their families under UK immigration control; it protects the status of Irish citizens in UK immigration law once their free movement rights end; and it makes provision regarding retained EU law governing social security coordination. The Government has stated that the power to make regulations relating to social security coordination is necessary to enable it to deliver a range of options after exit day. 

Healthcare (International Arrangements) Bill 2017-19

The Government has indicated that the Healthcare Bill is required because at present the Secretary of State does not have specific powers to give effect to healthcare arrangements for overseas health care. However, the Bill might not be essential. It would be possible for the UK to enter reciprocal healthcare arrangements with the EU or with individual members states.

Stephen Hammond, Minister of State for Health stated the Government can introduce regulations to ensure, “there is no interruption to healthcare arrangements for UK nationals … in those Member States who agree to maintain the current arrangements for a transitional period” after exit day.

Financial Services (Implementation of Legislation) Bill [HL] 2017-19

Most financial services regulation is currently done at the EU level. The Financial Services Bill enables the Treasury to make corresponding or similar provisions in UK law to upcoming EU financial services legislation. If the UK leaves the EU with no deal, without this Bill, there will be no mechanism through which financial services regulation can be updated.

The Bill commenced its Second Reading on Monday 11 February 2019.

The Draft Bills

The Environmental Principles and Governance Bill 2017-19 and the Animal Welfare (Sentencing and Recognition of Sentience) Bill are draft Bills. These Bills are expected to be included in the next Queen’s Speech.

Fergal Davis is Brexit Editor at the House of Commons Library.