21 June 2019

With the two Conservative leadership candidates insisting that a no deal Brexit must remain on the table, Joe Marshall argues that leaving the EU without a deal presents significant legal risks.

As recently as February, the Government said it needed to pass six more Brexit bills to fully prepare for no deal. Since then, only one has made it onto the statute book. Government ministers and the Cabinet Secretary, Sir Mark Sedwill, appear convinced that they could manage without the remaining bills, but how the Government has achieved such legal alchemy remains unclear.

The Government is relying on workarounds rather than primary legislation

In some cases, the Government appears to have found workarounds and will rely on alternative powers to make up for the failure to pass Brexit bills. For example, the Government is having to use powers in the Taxation (Cross-border Trade) Act, rather than the gridlocked Trade Bill, to set up its trade defence function. However, the International Trade Secretary, Liam Fox, admits that the Trade Bill is still needed to provide the "best possible legal underpinnings" for the UK’s post-Brexit trade policy.

The Government also seems to have found workarounds for the Fisheries Bill – which includes powers to set fishing quotas post-Brexit. If necessary, the Government believes it can rely on prerogative powers to set quotas instead. However, this approach is less transparent and does not remove the need for the Government to secure a broad range of legal powers to manage UK fisheries after Brexit.

Workarounds might solve some problems, but are legally riskier and, as the Government admits, will not fix all legislative gaps.  

A failure to pass Brexit bills could leave the UK’s post-Brexit policy in limbo

Much of the no deal legislation passed so far, including the Government’s flagship EU Withdrawal Act, is designed to ensure UK law continues to function once the UK has left the EU. But the Government is reliant on other pieces of Brexit legislation to make policy changes, such as adopting an independent agriculture, fisheries or immigration policy outside the EU. Many of these bills have not yet been passed – potentially limiting or delaying the Government’s ability to make policy changes after no deal.

Before the initial Brexit deadline of 29 March, the Government said it could make do without some of this legislation being in place in time for no deal. However, the Government has also said that new legislation is needed to keep financial services regulations up to date and that not having the power to do this "represents a risk to the reputation, global competitiveness and efficiency of the UK’s financial markets."

And even if some legislation can wait, putting it off until after a no deal Brexit may not make it any easier to pass. Many of these bills will be politically contentious, and in a febrile political atmosphere it will not be easy to pass legislation quickly. Without a general election – and perhaps even with one – the parliamentary arithmetic for passing legislation will also remain very challenging.

Even where legislation has been passed, it may not be good enough to avoid legal challenge

The quality of some of the Government’s Brexit legislation has also been criticised. The Government has laid around 528 statutory instruments (SIs) to prepare for Brexit – rushing some of these through by using a procedure with reduced parliamentary scrutiny – and says it still needs to pass around another 32, but some of the SIs which have been passed are now out of date because EU law has since changed. The Government therefore needs to introduce further SIs to ensure the statute book is up to date by 31 October.

Several SIs have also been withdrawn and re-laid after drafting errors were spotted, while others have needed to be reworked after businesses pointed out that they were practically unworkable. Given that over 10,000 pages of new legislation have been rapidly created to meet the Brexit challenge, the criticism is hardly surprising – and it is almost certain that further errors or gaps in legal coverage will emerge after a no deal exit. SIs can be also judicially reviewed, unlike statutes, so the Government is likely to face legal challenges from those affected by no deal SIs. Brexit-related ministerial decisions may also come under scrutiny from the courts, with the no deal ferry contracts a high-profile example. In both cases, arguments might be made that the Government has overstepped its legal powers.

The Government's heavy reliance on Henry VIII powers, which allow ministers to amend or repeal Acts of Parliament with reduced parliamentary scrutiny, is particularly likely to face legal challenges. These powers are controversial and usually interpreted restrictively by the courts. Secondary legislation and ministerial decisions could also be challenges on other grounds – including for breaches of human rights law. It’s hard to predict how successful such legal challenges could be, and the fact the courts will also be grappling with wider legal implication of Brexit legislation, such as new categories of domestic law and significant changes in the way the courts can enforce human rights, will only add to the legal uncertainty.

If secondary legislation is struck down, ministers may have to legislate again – potentially at speed and in a difficult political atmosphere. The courts will also come under pressure – both from an increased workload and accusations that they are trying to ‘frustrate’ a no deal Brexit.

The Government may be correct when it says UK law will be ready for no deal, but that is not the same as saying it will work well, that there won't be legal uncertainty or that the courts won’t take a different view. Advocates of leaving the EU without a deal frequently describe it as a 'clean' Brexit. The risk, however, is that a no deal Brexit will result in a legal mess.    

Comments

Joe, do your comments apply exclusively to English law or do they take account of the differences to Scottish law?

We have a legal mess already. Parliament has legislated for:
1. Holding and honouring the result of the referendum
2. Submitting our application to withdraw from the EU under Article 50
3. The EU Withdrawal Act 2018, which commits the UK to leave the EU on Exit day, whether a deal is agreed or not.
All of these decisions became law upon receiving the Royal Assent.
If Parliament wishes to change its mind and propose and pass its own amendment to the EU Withdrawal Act against the policy of the government, with the connivance of the Speaker, that would be unprecedented and would only become law upon receiving the Royal Assent, upon which the Queen takes her advice from the Prime Minister. That leaves the PM in a decisive position. The only way for Parliament to sabotage Brexit is through a vote of no confidence in HM Government followed by the failure of any potential PM to obtain a majority following in the Commons. A new softer PM might be willing to ask the Queen for the Royal Assent. If no-one can command majority support in the Commons, a general election would follow. Turkeys would have voted for Christmas, as the Tories would lose heavily and Parliament would be hung.
An alternative would be for the PM to ask the Queen to prorogue Parliament to prevent the law being changed to sabotage Brexit. That would, in my view be quite justified, because the issue is a battle between Parliament and the electorate. The electorate must win because 17.4 million votes were cast to leave the EU, more than have ever voted for anything or anybody.

A god article - BUT - SHE had one job! TM's job over the last 3 years was to plan for a 'clean' Brexit which meant MANAGING and MITIGATING for this 'legal mess' in-house, and all other areas wherein a problem may occur - Simple. She had no remit to even broker a deal, never mind just accept the WA, a dictate to slavery from the EU, like a whet lapdog! 46 years of deceit and 'behind-our-back' dealings will take time to reverse, of course. SHE has wasted 3 valuable years and caused this absolute mess, turning the UK into a world laughing stock.

The clue to the tenor of this article lies in the word "could" in the title. Brexit is first and foremost a political decision, and if there is a will to make it happen then the Law is there to facilitate that, not obstruct it. The increasing encroachment of the Law and the Judiciary into what is rightly the sphere of politics has been brilliantly dissected in Jonathan Sumption's recent Reith Lectures. Parliament effectively derogated its sovereignty to the electorate in the referendum of 2015: those who wish to reverse this, arbitrarily seek to take this derogated right back, having sanctioned it. Legislation and legal process is routinely put up as a straw man by those who simply lack the integrity to come clean about their contempt for popular democracy. Do we reverse the outcome of a general election merely because a majority of Parliamentary representatives dislike the outcome? Where there is a will there is a way!