A No Deal Brexit: impacts on rights, standards, governance and transparent law-making
As we move towards a vote in Parliament on the Withdrawal Agreement & the Political Declaration on the Future Relationship, the Alliance has scoped what a No Deal Brexit could mean for civil society. We have used our core principles as a way of measuring and assessing some of the impacts of a No Deal Brexit. These are:
1. Open & accountable lawmaking- Legislating for Brexit must respect the democratic processes, including the devolved nature of the UK constitution. There must be clear limits and safeguards on executive power. There must be robust parliamentary scrutiny at all levels with appropriate levels of transparency and debate.
2. A high standards UK, with rights, standards and funding to underpin them maintained- Leaving the EU should not mean weaker standards, fewer rights or loss of funding. A UK framework for common standards must be mutually agreed between the four administrations to enable cross-border working and internal common market
3. Leaving the EU should not create a governance gap - EU institutions have a role in monitoring, oversight and ensuring compliance with the law as well as setting regulations. Where governance arrangements are changed as a result of leaving the EU, there must be clear powers and procedures for ensuring the law is properly implemented and enforced on an ongoing basis.
Time is running out for proper parliamentary scrutiny of Brexit legislation
No Deal means no transition period, which puts an immense time pressure on the government to get all Brexit legislation through (nine bills in the event of No Deal). There are only 37 sitting days between the meaningful vote on the 15 January and 29th March 2019 (assuming the House will not sit on Fridays and February recess is not cancelled). Getting all Brexit legislation through in such a short time frame is a mammoth task. If legislation is rushed through, scrutiny will likely be poor and there will be little opportunity for civil society to meaningfully engage.
On top of all the primary legislation needed to get through before exit day, parliamentary time will be very tight to get all Brexit related statutory instruments through before exit day. The government has said that they expect approximately 700 EU exit SIs. At the time of writing, 297 Brexit related SIs have been laid, only 61 of which have completed their passage through Parliament. Again, the short time frame that a No Deal presents will have significant implications for effective scrutiny. This is particularly the case if the government decides to trigger the ‘urgent case’ procedure, which means that negative statutory instruments are not subject to sifting by the European Statutory Instrument Committee.
No Deal Brexit risk weaken standards
The government has published guidance on how to prepare for a No Deal scenario. Almost half – 50 of the 106 – express an intention to unilaterally recognise EU standards and measures in the hope of minimising disruption in March 2019, at least for a time-limited period. This recognition covers EU product authorisations in a number of goods categories, including most plant products, medical devices and some car components. The UK has proposed introducing ‘temporary permissions regimes’ for various financial services, allowing EU firms to continue to trade in the UK for a period after Brexit. Among other things, the UK also plans to accept EU road haulage documentation,aviation safety standards, and data protection standards.
However, in some areas, the UK proposes to treat goods from the EU like those from any third country straight away. These areas include the quality of blood ororgans, regulation of pesticides, and (almost all) civil legal measures. As member of the Alliance, Sustain has noted- a No Deal Brexit could result in the the the UK have to compete with cheap imports which can result in deregulation that weakens environmental, safety and animal welfare standards.
More details are needed about the replacement of EU funding in the event of a No Deal
EU funding has provided a lifeline to people and communities experiencing disadvantage, discrimination and abuse and provided security for the voluntary and community organisations that support them. The funding often enables work on difficult issues and with groups for which there are often no alternative sources of funding. For instance, funding helps workers at risk of discrimination and women with complex needs including homelessness, addiction, and mental ill health.
The UK government has promised that EU Structural funds, EU regional development fund and Horizon 2020 will continue up until 2020 and will then be replaced by the UK Shared Prosperity Fund. But that is pretty much where the certainty stops- so far very little detail has emerged on what the UKSPF will look like and how it will operate. The No Deal technical notices make no mention of whether the government plans to introduce the Shared Prosperity Fund immediately after 2020.
No Deal Brexit will leave significant gaps in governance and enforcement
EU institutions have a role in monitoring, overseeing and ensuring compliance with the law as well as setting regulations. There simply isn’t the time to replace the infrastructure of these agencies if we crash out in March 2019.
Take the most advanced chemicals regulatory system in the world, for instance- EU’s REACH (Registration, Evaluation, Authorisation and restriction of Chemicals). Leaving without a deal means leaving REACH, a system that took ten years to build up and covers over 21,000 chemicals. The government’s technical notice on REACH sets out its intention to establish a UK regulatory framework and build domestic capacity to deliver the functions currently performed by The European Chemicals Agency.
However, with less than 90 days left before exit day, it is unlikely that there will be sufficient time to not only establish a UK regulatory framework but also to establish mechanisms for enforcing that framework. Without this regulation and enforcement, there is little to stop companies selling products in the UK that are banned by the EU and the risk increases that the UK could be a ‘convenient dumping ground for toxic products’.
No Deal Brexit: Citizens' rights will be watered down
While it is a welcome move that the UK government has set out its guarantee that EU citizens residing in the UK will be able to stay in the event of a No Deal Brexit, such a scenario will nonetheless result in a watering down of citizens’ rights.
The settled status scheme will only apply to EU nationals who arrive before 29 March 2019, rather than the end of 2020 when the transition period is currently assumed to end. In the event of a no deal scenario, EU citizens will see their rights diminished. For instance, EU citizens will not get a right of appeal for refusals under the settled status scheme, but merely administrative review and judicial review. Joe Tomlinson and Byron Karmeba from the Public Law Project has said that “the lack of a right of an appeal generates an unnecessary amount of uncertainty in an already deeply precarious landscape for EU citizens resident in the UK and their families”.
In addition, there is no mention in the government’s technical notice to the Independent Monitoring Authority. Article 159 of the Withdrawal Agreement sets out that the Independent Monitoring Authority will conduct inquiries into alleged breaches of the agreement on citizens’ rights. Following such complaints, the authority will also have the right to bring legal action before a court or tribunal in the UK. A No Deal scenario does not remove the clear need for independent monitoring and the right for claimants to submit potential breaches.
Removing independent monitoring of the scheme as well as the right for claimants to submit potential breaches effectively means that a no deal scenario will indeed leave EU citizens with fewer rights than they have now and what they would have had in a deal scenario.
Moreover, in the event of a No Deal scenario, this, or any future Parliament could repeal, some or all of the citizens rights EU citizens currently enjoy because of the EU Withdrawal Act 2018. Further, because the ministerial powers in the EU Withdrawal Act are so broad, there is a risk that those rights can be weakened with little intervention from Parliament.
For UK citizens living in Europe, it will be up to each individual member state to regulate the position of UK citizens under its national law- subject to partial EU-wide harmonisation of some aspects of immigration law regarding non-EU nationals. The government has not given guarantees that could have been provided unilaterally, such as the right to bring non-British family members to the UK. The technical notice simply sets out that details will be confirmed “in due course”. With less than three months to go before exit day, the government needs to provide more detail and more insurances to UK citizens living in Europe.
Northern Ireland Council for Voluntary Action (NICVA) has also warned that a No Deal Brexit will result in a hard border between Northern Ireland and Ireland and therefore immediate loss of many of the rights of EU citizenship, including rights and protections guaranteed in the Good Friday Agreement. For instance, The Good Friday Agreement includes a principle of equivalence between human rights protections in Northern Ireland and the Republic of Ireland. This principle is now at serious risk due to an EU exit, as the Republic of Ireland will remain subject to EU law and rights derived from EU law will undoubtedly change and develop over time. By contrast, if Northern Ireland is outside the EU and is not subject to EU law, rights here will not develop in the same way.
We have not covered all the impacts a No Deal Brexit will have on civil society in this briefing. Please see further reading from our members below:
Green Alliance: What a ‘no deal’ Brexit could mean for the environment
Northern Ireland Council for Voluntary Action: The priority for Northern Ireland must be to avoid a no deal outcome (Joint letter from Voluntary, Community, Environment and Rural Sector)
Friends of the Earth: A no-deal Brexit would be disastrous for our environment
The 3 million: What happens to EU citizens living in the UK in case of no deal?
Charity Finance Group: A no-deal Brexit poses an “unacceptable risk” to the voluntary sector and its beneficiaries