At the time the UK leaves the Brexit transition period, the UK government, and where appropriate the devolved administrations should have in place the legal framework to ensure a smooth transfer into the new world where the UK is no longer connected to the EU’s legal order.
However, both the UK government and the devolved administrations are currently putting their resources in to the response to COVID-19, limiting the progress being made on legislative preparations for the end of transition. Given the UK government has reiterated its position that the transition period will not be extended beyond the end of this year, this blog looks at what still needs to be done ahead of the end of the transition period on 31 December 2020 and whether the rush to pass legislation towards the end of the year will limit the opportunities for parliamentary scrutiny.
The UK government’s position
In the UK government’s guide to the Queen’s Speech in December 2019, the Prime Minister wrote:
“We will avoid the trap of further dither and delay – by ruling out any extension to the implementation period beyond 2020. And we will maximise the opportunities of Brexit – taking back control of our money, our laws, our trade and our borders, introducing an Australian style points based immigration system so we can attract the brightest and the best from across the world.”
In the guide, the UK government describes the approach as preparing legislation to seize the opportunities created by Brexit. It is therefore instructive to look at what still needs to be done in a legislative sense to ensure the UK is ready to take advantage of those opportunities. The challenge in getting ready for the end of the transition period is exacerbated by the limits placed on parliamentary time as a result of the COVID-19 pandemic.
Primary legislation
The Queen’s Speech included, among others, seven Brexit related bills which have been introduced in the UK Parliament. In addition to the EU (Withdrawal Agreement) Bill which was passed ahead of the UK’s exit from the EU on 31 January 2020, the following Bills have been introduced:
- Agriculture Bill
- Fisheries Bill
- Trade Bill
- Immigration and Social Security Co-ordination (EU Withdrawal) Bill
- Private International Law (Implementation of Agreements) Bill
- Environment Bill
- Extradition (Provisional Arrest) Bill.
The Scottish Government has identified that all but the Extradition (Provisional Arrest) Bill will require legislative consent from the Scottish Parliament. However, legislative consent memorandums have yet to be lodged.
These bills are all at a relatively early stage in the UK parliamentary process and none has completed its passage through the first house (either the Commons or the Lords). Given the COVID-19 pandemic and the difficulties presented by social distancing requirements, the UK Parliament’s ability to vote on these Bills may be compromised in the short term, though MPs have approved a motion to bring in remote voting and testing is taking place . As a result, if these Bills are to be on the statute book in time for the end of transition, they will need to move through the parliamentary process fairly quickly once an element of normal parliamentary procedure resumes.
Secondary legislation
The UK and Scottish governments still also need to pass a number of pieces of secondary legislation ahead of the end of transition. Whilst there are no figures for the number of Statutory Instruments (SIs) and Scottish Statutory Instruments (SSIs) expected, the Cabinet Secretary for the Constitution, Europe and External Affairs has indicated that:
“the burden would be as heavy as the one that we took on when we processed the no-deal SSIs, when we dealt with more than 100 statutory instruments.”
Again, because of COVID-19, many of these may need to be laid in legislatures after summer recess when just four months will be left before the end of the transition period.
Where UK SIs relate to devolved matters, the consent of Scottish Ministers will generally be required. It is anticipated that the Scottish Ministers will give their consent only if the Scottish Parliament agrees (as was the case with deficiency-correcting SIs).
The 100+ figure suggested by the Cabinet Secretary is only for the SSIs to be laid before the Scottish Parliament. The “no-deal” preparations involved a greater number of SIs made at Westminster which covered devolved areas, and to which the Scottish Government consented. In each case, the Scottish Parliament scrutinised the Scottish Government’s “notification of intention to consent”. The volume of such SI notifications that will need to be considered before the end of the transition period is not yet known.
A further complicating factor is that the power to introduce some secondary legislation will only be derived from the Brexit related Bills which the UK parliament has still to pass. This means that some SIs and SSIs can only be laid once UK and Scottish Ministers have the necessary powers to be provided by the Brexit related Bills. Again, this means time is likely to be short with the possibility of secondary legislation being rushed through towards the end of the year.
Common frameworks
A further element of the complicated post Brexit legislative jigsaw is the plan for GB and UK wide common frameworks. The UK government and the devolved administrations have agreed on the need to ensure that the common GB or UK-wide approaches which have developed as a result of EU membership continue once the UK is no longer bound by EU law.
Discussions about these common frameworks are ongoing with the governments having identified 21 policy areas where legislative frameworks may be necessary. According to the UK government, by the end of 2019, only two frameworks (Hazardous Substances and Nutrition Health Claims, Composition and Labelling) had been progressed to the review and assessment phase. As a result, much work still needs to be done if the frameworks are to be in place before the end of this year.
In addition to legislative frameworks, the governments have identified a further 78 areas where non-legislative frameworks are necessary. These are likely to involve intergovernmental agreements and as yet, no update has been provided on the progress of these.
Limitations on scrutiny?
It is possible that due to COVID-19 there will be little progress on the legislative preparations for the end of the transition period until later in the summer. As a result, this will leave a very short period of time for both the UK parliament and the devolved legislatures to consider and pass a raft of primary and secondary legislation ahead of the end of 2020. This presents five potential concerns for legislators:
- The time for consultation with stakeholders and to scrutinise the primary legislation at Westminster will be curtailed.
- The time for devolved legislatures to consider whether to grant legislative consent will be similarly shortened and likewise, the time for the UK parliament to consider the views of the devolved legislatures may also be constrained.
- Opportunities to properly consider Brexit-related Scottish secondary legislation will likely be limited with Members in some cases potentially feeling they have little choice but to agree to legislation to ensure the statute book is prepared for the end of transition as was the case during the passage of the “no deal” secondary legislation in the run-up to the exit day deadlines.
- Similarly, opportunities to properly consider whether Brexit-related secondary legislation in relation to Scottish devolved matters should be made at Holyrood or Westminster will likely be limited in the same way. Members may in some cases feel that they have little choice but to agree to the legislation being made at Westminster if it is to be on the statue book in time.
- In a shortened timeframe the opportunities for legislatures to consider, scrutinise and inform common frameworks (both legislative and non-legislative) are likely to be more limited.
Conclusion
A large volume of legislation and common GB and UK-wide frameworks still need to be agreed ahead of the UK leaving the transition period at the end of 2020. In the light of the challenges to parliamentary time and procedures presented by COVID-19, the preparations necessary for the end of transition present the legislatures across the United Kingdom with a number of challenges. These include the volume of primary and secondary legislation to consider and ensuring effective scrutiny of that legislation and of any common frameworks agreed by the UK government and the devolved administrations.
Iain McIver, SPICe Research