Disclaimer – this blog was written on 11 January and looks at possible outcomes if the Government does not win the Parliamentary vote on 15 January. All facts are correct at the time of writing.
Do we have more understanding of what the current Brexit options are?
- The Prime Minister's deal needs to be subject of a meaningful vote in Parliament which is expected to be on 15 January. If the PM loses this vote, then following the Dominic Grieve amendment on 9 January 2019, the PM will have to bring back an alternative proposal within three days. Parliamentary procedure means that the PM cannot bring back the same proposal again and again if it continues to be lost.
- No deal – this is still an alternative but the Yvette Cooper amendment 8 January 2019 on the Finance Bill suggests that Parliament has enough numbers to vote down no deal. This will be tested by an outstanding amendment from Hilary Benn MP to reject no deal which will be on the table before the meaningful vote is taken on the 15 January.
- If Parliament votes down the PM's deal then there are further Parliamentary options which may be attempted in order to mandate the government to act in specific ways including:
- A People's Vote – which may be on the deal on offer, no deal and possibly remain. However, there are timing issues with this and it is uncertain what the questions would be. If the PM's deal and no deal are voted down then it would be potentially difficult to have these options on the ballot paper. If the UK needs an extension to Article 50 to run a People's Vote, this needs the agreement of all 27 other member states individually. Further if the People's Vote is run after 29 March, within an Article 50 extension period, then remaining in the EU is also not a possibility as it is not possible to revoke Article 50 after 29 March even if it is within an Article 50 extension period.
- Revoking Article 50: Withdrawing the Article 50 notice to leave the EU. As the ECJ found, the UK can withdraw this notice until 29 March 2019 and retain its existing opt outs and rebates.
What will be the effect of the European Communities (Withdrawal Act) 2018 on planning?
The Withdrawal Act 2018 comes into effect the day after the UK leaves the EU and revokes the 1972 European Communities Act. The Act also states that it will place all EU legislation into UK legislation immediately and withdraws devolved powers from Scotland, Wales and Northern Ireland. However, if there is a transition period, as in the PM's deal, then EU law will continue for the period of the transition, expected to be the end of 2020. This will also include legal changes that are made by the EU in that period although the UK will have no role in discussing or agreeing them. The Withdrawal Act does not add any changes made in EU law to UK law after the date on which the UK leaves the EU ie the legislation is frozen at the leaving date. Interpretation of this retained and frozen EU law will be by the UK rather than the EU courts. The Withdrawal Act also contains powers to 'correct' problems arising from withdrawal and the example given of how this will work is Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and is particularly in relation to the EEA area.
After this, according to the EU/UK Withdrawal Agreement, Northern Ireland will remain in the single market and the whole of the UK will remain in the customs union (the backstop) until there is a new trading agreement. This means that all legislation in Northern Ireland will be the same as in the rest of the EU while for GB this may differ. This is because in the Withdrawal Act 2018, there is no guarantee that UK legislation will be kept up to date in parallel with EU legislation and Minsters have already indicated that in some areas including the environment that they may wish the UK to diverge from EU law. The UK will not be involved in any discussion about future legal intentions within the EU, for either Norther Ireland or GB.
The Withdrawal Act 2018 removes devolution powers for matters such as transport and the environment and the Department of Health has indicated that it will remove the Barnett Formula which is used to provide the funding ratios for new responsibilities and where Scotland, Wales and Northern Ireland currently receive more funding per capita than the UK. The Withdrawal Act indicates that there will be a 'freeze' period on all devolution for two years, i.e. all decisions will be taken by Whitehall and Westminster that were previously devolved. This will be through the means of regulations which the government will need to introduce subsequently. The Welsh Government has uniquely concluded a MoU on how these freezing powers will work. The Withdrawal Act provides the Government with powers to make any regulations it considers necessary to implement the Act in relation to the devolution settlement.