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17 May 2019
With Article 50 having been recently extended so that the UK will leave the EU by 31 October 2019, it is timely to look at where things stand with Brexit-related legislation, and what might happen in the coming months.
The major piece of legislation that has been passed so far is the EU Withdrawal Act 2018, which converts EU law into UK law, and gives Ministers the powers to create and amend secondary legislation to ensure continuity and that the retained law makes sense outside of the context of the EU.
You can read more about the EU Withdrawal Act 2018 and two other Acts which had been passed at the time of writing in our previous Brexit legislation update blog from November 2018. In addition, the Nuclear Safeguards Act 2018 and Sanctions and Anti-Money Laundering Act 2018 were passed in May and June 2018 respectively.
Which Bills have become law since our last blog?
The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 recently passed into law. This gives the UK Government Secretary of State powers to arrange healthcare outside the UK and give effect to reciprocal healthcare agreements with EEA countries and Switzerland.
The Welsh Government recommended (PDF, 500KB) consent be given to the Bill. It secured an amendment to the Bill, and a memorandum of understanding providing a statutory requirement for consultation with the devolved administrations on agreements covering devolved areas.
The Assembly agreed the Legislative Consent Motion on 12 March 2019 and the Bill received Royal Assent on 23 March 2019.
Additionally, the European Union (Withdrawal) Act 2019 was introduced as a private members Bill on 3 April 2019. It provided a mechanism for the UK Parliament to instruct the prime minister to request an extension to Article 50 from the European Council if no exit deal could be agreed within the original time period. The Bill was fast-tracked through Parliament, and received Royal Assent on 8 April 2019.
What is the latest position with the remaining Bills?
The Trade Bill has finished passing through the House of Lords and will now go back to the House of Commons for consideration of the Lords’ amendments. The Trade Bill is part of the legal framework that will allow the UK to enter into ‘continuity’ trade deals with countries and trading blocs that currently have such deals with the European Union.
On 12 March, the Assembly gave legislative consent to the Bill, following the Welsh Government laying a supplementary LCM (PDF, 160 KB) the previous month. The Welsh Government considers that its concerns around aspects of the Bill have been addressed by amendments and non-legislative commitments. These were on UK Ministers’ ability to legislate in devolved areas and restrictions on Welsh Ministers ability to legislate to implement the Bill in devolved areas.
A further supplementary LCM (PDF, 115 KB) was laid 10 May 2019. This covers an amendment, made after the vote on 12 March, to the Bill widening the term ‘subordinate legislation’ to include subordinate legislation made under Assembly acts and measures. The Welsh Government states that one of the effects of this is that it widens devolved powers under the Bill. The requirement for the Welsh Government to consult the UK Government before making regulations under the Trade Bill will be dis-applied in cases where the same thing could be done by Welsh Ministers in regulations under an Assembly Act or Measure. The Welsh Government recommends that the Assembly gives consent, as it considers that this amendment is an improvement to the Bill. The Assembly will debate this supplementary LCM in Plenary on 21 May.
The UK Agriculture and Fisheries Bills are two UK Bills in devolved areas, which will provide frameworks within which the Welsh Government will introduce its own Bills. The Welsh Government expects its proposed Agriculture Bill to become law by the end of this Assembly, although whether it is able to do the same in relation to its proposed Fisheries Bill will depend on the progress of the UK Government’s Bill.
The UK Agriculture Bill will provide a legal framework to replace the Common Agricultural Policy and to establish a future system for agricultural and land management support after Brexit. It passed the committee stage in the House of Commons on 20 November 2018 and is awaiting a date for report stage and third reading.
The Welsh Government laid a supplementary LCM (PDF 163 KB) on 26 March highlighting that its concerns relating to the Bill have been addressed by a mixture of amendments and non-legislative commitments. These centred around the extent to which the WTO agreement on agriculture is devolved, and the distribution of the red meat levy. It will lay a further LCM at the point where the Bill has passed through the Commons and Lords, taking into account any further amendments made.
The UK Fisheries Bill seeks to replace the Common Fisheries Policy with a UK based legislative framework under United Nations Convention on the Law at Sea. The First Minister told the External Affairs and Additional Legislation Committee on 29 April that some positive progress has been made in relation to the Welsh Government’s concerns about aspects of the Bill. The one outstanding concern is around clause 18 of the Bill, under which it is proposed that the UK Secretary of State sets quotas for UK fishing opportunities. The UK and Welsh Governments are currently working on a Memorandum of Understanding setting out how these powers would be used.
There are a further two Brexit Bills on non-devolved areas currently going through the House of Commons. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is awaiting a date for the report stage and third reading in the House of Commons. TheBill will end freedom of movement and extend immigration controls to apply to EU, EEA and Swiss citizens. It includes protection for Irish citizens in UK immigration law once freedom of movement has been repealed and the powers to amend retained EU law on social security. However, it does not set out the future immigration rules for EU citizens.
Immigration itself is a reserved matter however this Bill will intersect with a range of devolved policy areas, including the NHS, social care, higher education and certain industries.
The Financial Services (Implementation of Legislation) Bill started in the House of Lords and is now awaiting a date for the report stage and third reading in the House of Commons. The Bill will allow the UK Government to make provision by reference to certain EU financial services legislation adopted up to two years after the UK’s withdrawal from the EU.
The other remaining Bill that is yet to be introduced by the UK Government is the European Union (Withdrawal Agreement) Bill, which will implement the Withdrawal Agreement into UK law. On 14May 2019 the Prime Minister made a statement indicating that the UK government would bring forward the Withdrawal Agreement Bill in the week beginning 3 June.
Read all about Brexit and the Assembly here.
Article by Natasha Cowley, Senedd Research, National Assembly for Wales
Senedd Research acknowledges the parliamentary fellowship provided to Natasha Cowley by the Engineering and Physical Sciences Research Council which enabled this article to be completed.