With 45 days left, unless workarounds or extra time can be found, uncomfortable decisions may have to be made on which Brexit Bills to prioritise.
Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.
The clock is ticking. We’re running out of runway. Whatever metaphor you wish to use, Parliament has an awful lot of legislating to do before 29th March if it wishes to complete the passage of the seven Brexit Bills, along with a large amount of secondary legislation.
Today, the Prime Minister will update the Commons, setting out the Government’s progress in negotiating with the EU following the passage of the two advisory amendments last month. They instructed, though not mandated, the Government to seek to both remove the backstop (Brady) and avoid a No Deal scenario (Spelman/Dromey).
Since then, the negotiations have been less than productive, revealed in striking language in the Prime Minister’s letter to the Leader of the Opposition over the weekend. In it, she stated that she was still seeking alternative arrangements to the backstop without specifying in detail what they were, and that negotiating a free trade deal as a third party outside of the Single Market was a “negotiating challenge”, which is somewhat of an understatement.
A month on from the meaningful vote on 15th January, whilst significant column inches are dedicated to the possibility of the Malthouse Compromise we are no closer to knowing if the EU is prepared to alter the existing deal. Parliament is running out of time before 29th March, either to pass a Bill implementing an agreed deal, or to pass legislation ensuring the UK is ready for a No Deal Brexit.
The scale of the challenge
On 31st January, the Leader of the Commons quite rightly cancelled the February half-term recess, yet also scheduled a range of business in the Commons that, whilst important, didn’t progress No Deal legislation in any way. This risk-averse programming is almost certainly down to the fact that, with negotiations ongoing with the EU, the Government doesn’t wish to give any opportunities in the House to amend legislation to include unhelpful and challenging amendments. For example, there have been strong hints that amendments could be tabled to the Trade Bill in the Lords that would seek to keep the UK in a Customs Union.
If this is the case, and with reports suggesting that the next ‘meaningful vote’ is in around three weeks, in the week commencing 25th February, we may not see any more progress in the Commons on much needed No Deal legislation until a deal is reached that the House can agree on.
In terms of readiness, a number of No Deal preparation Bills have already received Royal Assent, including the Customs Act, the Nuclear Safeguards Act, the Road Haulage Act and the Sanctions Act. However much more needs to be done. For a start, winning the meaningful vote is only the first step – the Government must then pass a European Union Withdrawal Agreement Implementation (EU WAIB) prior to 29th March to give legal effect to the Withdrawal Agreement. However the Government must not put all its eggs in one basket, and in order to provide security in the event of No Deal should pass a further six Bills, and additional secondary legislation.
These Bills range from allowing the UK to enter into trade deals, creating a domestic agriculture and fisheries market, maintaining our healthcare agreements, giving powers to implement financial services regulations, to bringing EU citizens under UK law.
The current state of play is as follows:
As you can see from the above table, agriculture, fisheries, and immigration are well behind schedule and will need considerable work to pass before 29th March. Equally, Trade has its own issues as outlined above.
The Government also has to pass around 600-700 statutory instruments, or secondary legislation, before 29th March to be ready, in addition to the above Bills. The timetable for their consideration has increased in recent weeks and the Government might just be on track, but around 200 still have to be considered in the next few weeks. Certainly the SI committees are working overtime, and have significant reading ahead of them. The Times’s Esther Webber reported one SI from BEIS was “636 pages long, weighs 2.54 kilos and covers 11 matters that would be expected to go in separate documents.”
Will the UK be ready in time?
There are 45 days left until 29th March, and Parliament will sit for 26 of them (not counting sitting Fridays), unless it chooses to add more sitting days to the calendar or change the business on Fridays from Private Members’ Bills to Government business. If the deadline of 29th March remains in place, it is unlikely that the Government will be able to pass both the EU WAIB and the six remaining No Deal preparation Bills.
This will mean uncomfortable decisions about which Bills it has to prioritise, and whether workarounds can be found through alternative means. The Trade Bill is probably the highest priority for the Government aside from the EU WAIB, but failing to set up domestic agriculture and fisheries markets prior to exit day, for example, will cause severe concerns and uncertainty in those sectors. If Government, Parliament and the EU reach consensus about an amended deal, or agree to the existing deal, then it’s likely that there will need to be a short extension to Article 50 as passing the EU WAIB inside a month, whilst technically possible, would be extremely challenging. However, the Government must continue to progress with the No Deal Bills over the next few weeks, or the UK faces running out of runway before 29th March.