Brexit part 3 - this time it’s temporary

This marks the final instalment of what has turned out to be a summer Brexit trilogy. First there was the EU (Withdrawal) Act, then the White Paper on the proposed future relationship between the UK and the EU. Now we have a further White Paper on the proposed Withdrawal Agreement, dealing in particular with the “implementation period” which is due to end on 31 December 2020. 

We won’t know until late autumn at the earliest whether there will even be a Withdrawal Agreement and implementation period, as opposed to a “hard Brexit”. However, the Government says it wants to ensure there is time for proper parliamentary scrutiny should a deal be reached. 

Cynics might say that the start of MPs’ summer holidays is an ideal time to get out the news that the UK basically plans to carry on acting as if it were an EU member until the end of 2020, but without having any say in the rules. For in large part, that is what the White Paper provides for. The key features from an employment and immigration perspective include the following:

Implementation period

It is proposed that from 29 March 2019, when the UK leaves the EU, until 31 December 2020, “EU law will continue to have effect in the UK in the same way as now”.

Any new pieces of directly-applicable EU law that may be introduced (e.g. a regulation such as the General Data Protection Regulation) will continue to apply automatically to the UK, while any new EU directives will continue to be given effect through UK implementing legislation. For employment law, the EU’s proposed Directive on Transparent and Predictable Working Conditions is an example of a piece of legislation that might be caught by this. 

While the UK will no longer have any say in such measures, the Government seeks to provide some reassurance. It notes that “given the way the EU’s legislative process works, most Council directives and regulations which will come into force during the time-limited implementation period have already been agreed or are being negotiated now, while the UK is still a Member State… the UK Parliament will therefore already have scrutinised in draft much of this new legislation that will apply to the UK during this period”.

How will this be made to work legally, given the passage of the EU (Withdrawal) Act barely a month ago? The answer, rather confusingly, is that the Act will be swiftly amended and relevant provisions of the now-repealed European Communities Act 1972 will be reinstated (“saved”) until the end of the implementation period. As the UK will no longer be an EU member, however, statutory references to the obligations of “Member States” will be amended to refer to “Member States and the UK”.

Further amendments to the EU (Withdrawal) Act will ensure that the conversion of EU law into “retained EU law”, and the “domestication” of historic ECJ case law, will only take place at the end of the implementation period, rather than 29 March 2019. The Government’s “Henry VIII powers” to correct deficiencies arising from withdrawal would be extended to 31 December 2022 – i.e. two years beyond the end of the implementation period.

As regards the role of the European Court of Justice (“ECJ”) during the implementation period, it is proposed that the UK will “maintain the same rights as Member States to intervene in cases before the Court and UK-based lawyers will maintain their rights of audience before the Court”. Moreover, if the UK has “concerns about the implementation or application of EU law during the implementation period, it will retain the same formal ability to challenge such action as a Member State”. ECJ decisions will continue to be binding on the UK during this time.

Immigration

It is proposed that free movement of EU citizens will essentially continue until 31 December 2020. Any EU citizens who, by that date, have continuously and lawfully lived in the UK for at least five years will be able to stay indefinitely by applying for “settled status”, which opens the way to citizenship at a later date.

Importantly, any EU citizen who has arrived by 31 December 2020 will also be able to apply to stay once they have reached the five-year threshold, as will family members living with them. Close family members will be able to join them later, where the relationship existed on that date.

A “smooth, transparent and simple” process to establish settled status is promised. Individuals will be able to rely directly on their rights under the Withdrawal Agreement in UK courts.

Equal treatment

The White Paper says that existing rights to equal treatment and non-discrimination for EU citizens residing or working in the UK will also be preserved following the implementation period. There will be provision to ensure those “within scope of the Withdrawal Agreement cannot be discriminated against on grounds of nationality… this includes any discrimination in relation to employment, the exercise of the right to be self-employed and to the setting up and managing an undertaking. These protections extend to those who are eligible for, but have not yet acquired, settled status.”

Where does this leave us?

There is no guarantee that any of the above will come to pass. The Government notes that it will continue to lay various items of secondary legislation before Parliament to allow it to deal with the consequences of a hard Brexit.

Even if a deal is done it must be approved by the European Parliament as well as the UK Parliament. The Government further notes that many of the provisions of the proposed Withdrawal Agreement – notably, protecting UK citizens’ rights in other EU member states – will also require legislation to be passed in every other EU country. It is not clear how much of a priority other EU members are likely to make this. 

Nonetheless, other significant provisions of the White Paper envisage continued participation by the UK as a non-voting member in EU institutions, agencies and bodies, and the UK continuing to benefit from the EU’s international agreements, trade negotiations and external representation. All in all, the White Paper adds up to the strongest signal to business yet from the Government that it wants things to carry on much as they are at present – at least until the end of 2020.