A blog by Dr Janice Morphet, Visiting Professor at the Bartlett School of Planning
The challenge of understanding and predicting what might happen within the UK as a result of the 2016 Brexit referendum becomes more complex by the week. This is not perhaps surprising as the EU is a mature organisation with sets of rules and programmes that are constantly being developed. In the UK, legislation passed by one Parliament cannot fetter a future Parliament's decision making. This is why, in part, we have some of the current debates about the timing of a General Election. Notwithstanding this, where are we on the Government's current known or expected position and how might this affect planning? After this we can consider what the other approaches currently being discussed by the combined Opposition parties might lead to.
Boris Johnson's position: Leave with a new deal or leave 'no deal'
Boris Johnson has frequently stated publicly and in private meetings with his MPs and Cabinet members that he wishes the UK to leave the EU with a deal, although this is now in question in the reasons given for Amber Rudd's resignation as a Cabinet Minister. If Johnson wishes this, to have a different deal from that agreed by Theresa May deal, he has primarily focused on the removal of the Northern Ireland backstop arrangements. However, little is known publicly of his other proposals. Here information is harder to find in the UK but sources from Brussels and the press have indicated that the Johnson new deal will be based on striking out elements of May's deal and as yet there is no indication of what will replace them. Of particular interest here, is a proposed move away from agreeing regulatory alignment for the environment. The practice of maintaining alignment with EU legislation on the environment would be difficult in the May proposals, not least as UK courts would be required to interpret the EU legislation in a UK context (this would not be devolved at least initially). However, there was recognition that, as the environment does not have boundaries and is cross national, it would be right to retain this alignment. The removal of this alignment would have significant impact on the UK in a variety of ways and make it open to pressures for the adoption of US environment standards in any forthcoming US/UK trade deal negotiations.
What might be the other implications for planning of a 'no deal'? These are many and various, stretching across a range of other EU policy areas where the UK is involved in delivering jointly agreed programmes and legislation. These include rural and agricultural policy, research and innovation funding and support, skills, public health, medicines, heritage, energy and transport, with the latter two most heavily affected. The implications for energy will range from the provision of transnational pipelines and grids in which the UK is situated. It will influence the role of waste to energy regulations, renewables policy and other regulatory frameworks. For transport, there are implications for all forms of transport with the exception of the price of airline fuel. These will range from local sustainable mobility plans, including smart cards, port policy and airport locations. It will also have a major planning process influence on the schemes included within the 2008 Planning Act which will no longer have the legal basis in the EU treaties and Regulations and hence will need to return to adversarial rather than inquisitorial examination processes. Planning policy making will also be strongly affected by removing the UK from the Cohesion Regulations that are currently operational. Examinations may also need to return to adversarial processes for local and neighbourhood plans.
Another major impact is that there will be no legal underpinning of devolution as the subsidiarity provisions in the Maastricht and Lisbon Treaties will be lost. This will affect not only localism but also the legal support for the Parliament and Assemblies in Scotland, Wales and Northern Ireland. In this case it has already been possible to see a recentralisation of public policy in the post-Brexit provisions and one of the last acts of Theresa May as PM was to set up a review of devolved powers to examine how Whitehall can be re-inserted into devolved decision-making. On becoming PM, Boris Johnson gave himself the role of Minister for the union.
Another key issue if 'no deal' is the path that the UK follows will be employment rights for EU nationals in the UK and UK nationals within the EU. There is no final Government scheme published and secured though legislation but the most recent announcement suggests that in the UK , EU nationals will need work permits within three years and these will be determined on an Australian points-based system. The role of UK nationals in the EU is less clear. UK consultancies working in the EU will also no longer be covered by mutual recognition, will have to convince clients and governments that they can operate in a way that is compliant with EU standards and need extra indemnity insurance to support this. These consultancies are also likely to be paying considerable tariffs for operating in EU member states as the UK/EU trade relationship moves to WTO rules.
Legislation to prevent leaving without a deal
Since Boris Johnson became Prime Minister and started to announce his commitment to leaving the EU on 31st October whatever happens, all Opposition parties, with the exception of the DUP, have been increasingly working together to prevent a no deal departure. They have done this by taking control of Parliament, as the Government has no majority and then passing an Act which states that the UK must request an extension to 31st January 2020 if no deal has been reached by the time of the next European Council in October. These Opposition parties have not publicly stated what the next stage will be but they have together decided to prevent the Government from holding a General Election until after this date. This is also important electorally as a General Election after 31st October is likely to have a very different outcome to one conducted before that date, as it is expected that a later vote would split the Conservative vote with the Brexit party, although there could always be a pact between the parties. An earlier vote would also mean that students would not have registered and it was considered that it was the student vote that dented May's majority in 2017. The government is also facing legal changes in Scotland, Northern Ireland and London and will face more if it decided not to abide by the legislation to seek an extension to January 2020.
What might happen next? Who knows but a number of options are being floated by the commentariat. One is that Johnson will resign as PM or hold a no-confidence vote in his own Government and then force the Opposition parties to write the extension letter. Another is that after 31st October, the UK will refuse to appoint an EU Commissioner which means, under the terms of the Lisbon Treaty, that the EU cannot function. This might be difficult but not necessarily a showstopper. Dominic Cummings, Johnson's adviser has also suggested that there is other action that the UK can take to hold the EU to ransom until they make the UK a new offer but, at the time of writing, there is no indication of what these initiatives might be.
So, it seems unlikely that the UK will leave the EU without a deal, however this is achieved. Second, there may be a move to hold another referendum. Thirdly, Parliament might vote to revoke Article 50, in which case, we would be as we were before the referendum. All of these could happen before a General Election is called if the Opposition parties agree – but who knows….