Here we'll be bringing you the latest developments in the Brexit process, as both the UK and EU try to reach an agreement on the terms of the UK’s withdrawal. Our Brexit policy page highlights all of our latest briefings, responses and position papers on Brexit-related legislation and parliamentary inquiries. We've also created a Brexit Q&A, which we will continue to update at every stage of the process.
As things currently stand, the UK and the EU will attempt to negotiate an agreement on our future relationship by the end of 2020, following the UK's formal departure from the EU on 31 January. Until then, a transitional period until 31 December 2020 will ensure that EU laws will still apply to the UK and the European Communities Act 1972 will still be in force. However, given the breadth of Free Trade Agreements generally, coupled with the undertaking that any UK/EU agreement will be particularly ambitious in scope, it is possible that not all areas of law and legal practice will be included. Our webinar series and our research paper on the future impact and effect of Brexit on Scots Law and the Scottish legal system highlight the relevant issues to consider until such time as a fully comprehensive agreement is in place.
We'll also be highlighting the latest publications from relevant and reliable sources of interest. For any further information, or if you have any questions or concerns, please contact our Head of International, Katie Hay, at email@example.com or 0131 476 8351.
Our Brexit webinar series looks at the impact of the UK’s departure from the EU on Scots law and legal practice. While the UK and the EU will attempt to negotiate an agreement for our future relationship throughout 2020 after the UK's formal departure on 31 January, given the breadth of areas it will need to cover, it is possible that the agreement will not be sufficiently detailed to cover all aspects of legal practice. As a result it is still a good idea to familiarise yourself with the material we prepared in the event of a no-deal Brexit, in case no agreement is reached on these areas of law by the end of the year.
The Conservative Party won a decisive majority of 80 seats in the UK General Election on 12 December - the biggest Tory majority since 1987. In Scotland, however the Conservatives lost 7 of the 13 seats they previously held to the SNP, which won 47 out of the 59 Scottish seats.
This means that when the new Parliament votes on the government’s Withdrawal Agreement Bill on Friday 20 December, it should gain enough support to pass into law in time for the UK to end its EU membership on 31 January. The government will then have until the end of the transition period on 31 December either to negotiate a free trade agreement with the EU or agree an extension to the negotiation period, otherwise the trade relationship will default to World Trade Organisation (WTO) terms.
MPs voted 438 to 20 in favour of the Early Parliamentary General Election Bill, which allows a parliamentary general election to be held on 12 December 2019. The Bill was given Royal Assent on 31 October.
MPs approved the European Union (Withdrawal Agreement) Bill at its second reading in the House of Commons. This is a debate on general principles only and would normally mean that the Bill would then proceed to the next (committee) stage, at which point each clause and any amendments to the Bill would be debated. However, accompanying the bill at second reading was a programme motion outlining a considerably truncated timetable for the Bill's passage through parliament. MPs rejected this aspect, as it would offer no opportunity for effective scrutiny.
Because of the rejection of the government's proposed timetable, as well as the fact that EU Council President Donald Tusk subsequently said he would recommend that EU leaders back an extension to the 31 October Brexit deadline, the Prime Minister has 'paused' the legislation. According to government sources, should the EU grant an extension, he will push instead for a general election.
The House of Commons sat on Saturday 19 October (the first time on a Saturday since the 80s during the Falklands conflict) to debate the Government’s new Brexit deal, which the Prime Minister agreed with the EU the previous day.
To comply with the European Union (Withdrawal) (No. 2) Act 2019 (also known as "the Benn Act") the House of Commons needed to agree to this deal or vote for a no deal before Saturday 19 October 2019, or ask for an extension to Article 50.
The House passed the Government's new Brexit deal (the European Union (Withdrawal) Act 2018) without a vote. This was because MPs had first voted in favour of the Letwin Amendment by 322 to 306. This amendment stated that the House "withholds approval [of the Government's Brexit deal] unless and until implementing legislation is passed". This forced the Government to seek an extension from the EU and essentially nullified the meaningful vote.
The Prime Minister subsequently sent three letters to the EU: an unsigned photocopy of the request he was obliged to send under the Benn Act, an explanatory letter from the UK’s ambassador to the EU and a personal letter explaining why he did not want an extension.
The Ministry of Justice has published a Get Ready for Brexit Toolkit for Lawyers, which is essentially an inventory of all of the guidance it has published relating to practice areas and practice rights. You can access it here.
The Scottish Government has published a series of advisory notices on the effect of a no-deal Brexit on devolved areas of law. You can access these notices here.
As the threat of leaving the EU with no deal in place intensifies, the volume of publications advising businesses, professionals and citizens of the impact of no-deal on various aspects of Brexit has increased sharply and there is too much too continue to list in date order. Here is a selection of latest publications as well as links to sources of further information.
The UK Government updated its guidance on the rights and status of UK nationals living and travelling in the EU. It also updated its partnership pack for businesses with further information about preparing for changes at the UK border after a ‘no deal’ EU exit.
On 20 December the UK Government published a separation agreement with the EEA EFTA states (Norway, Iceland and Liechtenstein), the aim of which is to protect the rights of citizens who have chosen to call each other’s countries home; and also to resolve a small number of other issues arising from the UK’s exit from the EU.
Scottish Enterprise has launched its own “specially designed Brexit self-assessment tool”. Its purpose is to help businesses identify how Brexit might affect them, providing bespoke recommendations for action to help their planning activities. It will also be home to the Brexit 15-point checklist, news, articles, access to experts and event listings. Further information is available here.
The UK Government has produced a “partnership pack” to support cross-border trading businesses. It provides a guide to customs processes and procedures that are likely to apply in a ‘no deal’ scenario. According to the website, more detailed guidance will be provided later in the autumn, including specific actions that traders and other stakeholders will need to take to prepare. More information is available here.
Between August and October 2018 the UK Government published a series of technical notices designed to help businesses and individuals prepare for a no-deal Brexit in a wide range of areas of professional and personal life. Of relevance to the profession are the notices that have a bearing on various areas of practice (handling civil cases, IP matters, oil and gas, trade to name a few), as well as the notice on professional services and mutual recognition of qualifications, which includes specific reference to the legal profession and practice rights.
On 12 July 2018, the UK government published its much-anticipated white paper, advancing what it calls “a detailed proposal for a principled and practical Brexit”. The White Paper is split into four chapters: economic partnership, security, cooperation and institutional arrangements. In response, the EU’s chief Brexit negotiator, Michel Barnier, said he would analyse the UK’s proposals with EU member states and the European parliament “in light of guidelines” drawn up by EU leaders.
The Exiting the European Union Committee of the House of Commons published its Fifth Report of Session (2017-19) on the progress of the UK's negotiations on EU withdrawal (March to May 2018).
The UK Parliament’s Exiting the European Union Commons Select Committee published its report on the Future UK-EU relationship. The report sets out a number of ‘tests’ by which it will ‘judge the political declaration in October 2018’, i.e. the final Withdrawal Agreement.
The European Commission has now published a raft of stakeholder notices on a wide range of legislative and policy areas under the heading “Brexit Preparedness”. These can be accessed here. The same issues still apply, namely that the notices are factually correct if viewing the UK as a third country with no consideration of any influencing or mitigating outcomes (actual and potential). They have been published by the Commission under the guise of being advisory but they seem to assume that there is going to be no relationship whatsoever and refer to transitional arrangements only in passing.
Our Brexit Policy Working Group has taken the view that while omitting any reference to the potential impact of ongoing negotiations is not necessarily misleading, the omission of relevant international law provisions is. We have written to the Commission in these terms.
The European Commission Directorate-General for Justice and Consumers has published a third stakeholder notice on the impact of UK withdrawal in the field of data protection.
At its meeting on 15 December, the European Council agreed a set of guidelines for phase 2 of the Brexit negotiations, which sets out details about the proposed transitional arrangements and the general framework for the future relationship between the EU and the UK.
On 12 December, the EU Commission posted a Q&A clarifying the detail of the agreement reached on 8 December (see below) by the UK and EU negotiating parties.
In November 2017, DG Justice and Consumers published two stakeholder notices, one on the withdrawal of the UK and its impact on EU company law rules and one on the impact on EU rules in the field of civil justice and private international law.
Concerns have been raised about these notices. The Society’s Brexit Policy Working Group looked at these notices and took the view that they are generally accurate inasmuch as they outline what would happen in the event of no agreement but are intended to be read critically. They are pointing out the technical detail that shouldn’t be overlooked and should perhaps be viewed as a warning to the negotiating parties to work constructively to reach a compromise.