Author: Alex Martin, RINA, knowledge partner with Compliance & Risks
Understandably enough, much of the 2017 media coverage of Brexit focused upon the negotiations in Brussels, between the UK Government and the European Commission on such thorny topics as financial settlement, citizens’ rights and the future of the UK/Irish border. This is set to continue in 2018 as the negotiations move on to a second phase, with trade the focus this time round.
Whatever deal results from these negotiations will not automatically conclude Brexit though. In the UK, the Government has conceded to the deal being voted upon (something that remains contentious since the vote looks set to be a choice between “the deal negotiated” and “no deal”) while, on the EU side, it will go to the European Council and Parliament and, potentially, the national legislative chambers of the EU-27.
Ahead of a final deal being announced and subject to voting in UK Parliament, the UK Government is paving the way for Brexit with the passage of a Bill: the European Union (Withdrawal) Bill 2017-19. It is important to stress that, in the UK, a Bill is not a law; it only becomes so once it has been voted upon and is then granted royal assent to become an Act of Parliament.
At the time of writing, the EU Withdrawal Bill had been through three readings in the House of Commons and various Committee sittings. It is poised to progress to a second reading in the Lords in January 2018. Politically, the key areas of debate include a vote on a final deal but also the Government gaining powers at the expense of Parliament and whether repatriated powers rest with Westminster or are divided across the Devolved Administrations.
For businesses involved in the supply of hardware, engineered goods and electrical equipment, these are clearly not day-to-day concerns pertaining to the likes of market access and product regulatory compliance. This makes some of the more technical discussions that have come about in Committee sittings of interest. For example, the House of Commons’ Environmental Audit Committee has asserted that “up to a third of EU environmental law cannot simply be ‘copy-pasted’ into UK law” and its chair, Mary Creagh MP, has tabled amendments to the Withdrawal Bill, including the REACH-related “NC61” amendment that seeks to ensure the UK continues to adhere with REACH post-Brexit through adoption of new legislation.
What is perhaps of further interest is that the NC61 amendment was not carried when tabled in the Commons in December of last year. Does that then mean that, come 2019, the UK will no longer adhere to REACH? The short answer to that is no, and that continuity is on the cards. Indeed, the UK Brexit Minister, Steve Baker MP, provided confirmation in the House of Commons that the UK Government “will use the powers in [the] Bill to convert current EU chemicals law including REACH into domestic law” adding that any associated standards will “continue to apply in the UK”.
The trouble is, this answer only takes us so far when the UK’s future relationship with the EU is unknown, meaning that its interaction with EU institutions like the European Court of Justice (ECJ) and EU agencies like the European Chemicals Agency cannot be foretold. This makes the point about copy-pasting very pertinent. Simply replicating the text of an EU Regulation into a UK Act or Statutory Instrument is problematic when it refers to one or more specific EU agencies: will the UK defer to these agencies? Will the UK fund them even? There is also the working assumption with any EU Regulation that should the interpretation of the law ever require judicial resolution the ECJ would appoint a judge to do this. What happens then? Does the UK follow the ECJ ruling, leave the legal ambiguity as is, or initiate its own judicial investigation?
When reflecting on these questions, it is in some respects worrisome that the NC61 amendment was not carried. However, it really does seem to boil down to what the new EU-UK relationship will be: in or out of the Single Market, ditto the Customs Union, continuation in funding of agencies or not, and so on. One cannot help but feel that the political classes need to hasten their outlining of a complete picture this year such that, to continue with the painting analogy, the finer detail can be brushed in soon after.