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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The sense of stasis of the last days of the May administration has been replaced by a turbocharged Johnson Government.  Boris promised us energy in his victory speech, and we have certainly got that.

Michael Gove leads a slimmed down ‘war cabinet’ of key ministers to deliver Brexit and ensure readiness to leave without a deal on 31st October.  The Government is about to launch an £100 million information advertising campaign to help prepare the UK and businesses for the potential of No Deal becoming a reality.  The new Chancellor has said he will fund 500 new Border Force officers and identify new infrastructure at ports to minimise congestion and improve the flow of goods. The Government is certainly living up to Churchill’s maxim: ‘action this day’.

Yet in Parliament, the strategy is precisely the opposite. Inaction, avoid battle at all costs, man the barricades and repel the attempts by MPs to stop a No Deal Brexit. Last week I wrote about how MPs might attempt to do this, yet if Government does pursue this course of action in Parliament, will the UK really be ready for No Deal?

Brexit legislation

The legal default of No Deal on 31st October is determined by legislation, and no further action is needed to ensure this happens, unless of course MPs manage to pass new legislation to change or revoke the exit date.

The May administration planned a range of legislation to help prepare the UK for a No Deal Brexit.  The Customs Act, the Nuclear Safeguards Act, the Healthcare (EEA and Switzerland Arrangements) Act, the Road Haulage Act and the Sanctions Act have all received Royal Assent. As can be seen from the table below, there has been little progress on completing the passage of the remaining ‘main’ Brexit Bills.

Do these need to be completed?

The EU Withdrawal Act 2018, and the large amount of secondary legislation passed by Parliament over the last few months, has ensured that EU law has been transposed into UK law, and that Ministers have the ability to amend it if needed after we leave.

Of the five outstanding Brexit bills, none are absolutely necessary for the UK to leave the EU and therefore they do not need to be completed before 31st October.

The independent and impartial Institute for Government recently published a report on “preparing Brexit”, pointing out that workarounds exist. Liam Fox, then the Secretary of State for International Trade, “told the International Trade Select Committee that the Government has the legal powers to carry out the three main functions of the Trade Bill without it being on the statute book.”  However these workarounds are not always without complications.  The Fisheries Bill also has a workaround, in that the Government “has prerogative powers that will allow it to set fish quotas in the event of No Deal – although use of these powers will cause friction with the devolved administrations.”

Instead, the Government is taking the calculation that is crucial to avoid giving MPs opportunities to insert amendments forcing the Government to ask the EU for an extension, as recently happened with the Northern Ireland (Executive Formation) Bill.  MPs were able to amend the law, forcing Parliament to sit in October should the Prime Minister attempt to prorogue it.  The bills will be sat on, with the Government intending to bring them back to Parliament in the aftermath of the UK’s exit.

What happens if there is a deal negotiated with the EU?

If the Withdrawal Agreement is reopened, if the deal is renegotiated in a way that is palatable to the Prime Minister and his team and if it meets the approval of Parliament, the Government still needs to pass an amended EU Withdrawal Agreement Bill that reflects the new deal.  That is unlikely to be done in the short space of time that we have left before 31st October, and would therefore need an extension, which would first need to be agreed with the EU.

This extension would then need to be reflected in UK law, so that the 31st October date could be amended.  When the original ‘Cooper-Letwin’ Bill was passed earlier this year, the Government requested the ability to change the exit date in UK law using a negative statutory instrument, which was accepted by Parliament.  This SI could be drafted and laid in a very short space of time indeed.

No Deal is more likely than a bad deal

At the weekend Johnson, in the public rebuking of Gove, his new ‘war cabinet’ chief, made it clear that this going straight for No Deal was not the government’s strategy. He insisted: “we’re aiming for a new deal”. That seems increasingly unlikely with the public reluctance of the EU to remove the backstop. So as the dust settles for the summer recess and the Government steps up preparations for a No Deal Brexit, we await Parliament’s return in September to see if MPs will really accept that No Deal is better than a bad deal.

85 comments for: Chris White: How much of the Government’s No Deal legislation is in place? And is it all truly essential?

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