Brexit: planning for change?

The deadline for the UK’s exit from the European Union (EU) is fast approaching, and the risk of a no-deal Brexit (no-deal) is steadily rising in the face of the lack of progress in the negotiation talks. Therefore, we should now be asking:

• What is the UK government doing to plan for a no-deal scenario?
• What will happen to those laws, regulations, rules, policies and standards implemented and governed by EU law?

The government has been reluctant to openly address these issues in too much detail for fear that it will show their hand to the EU, and the negotiations will suffer as a result. The issue with this approach is that the UK cannot exist in a vacuum in the aftermath of a potential no-deal. The government will not be afforded time to do everything that is necessary to tackle this eventuality should it come to pass, and so policies and guidance need to be in place prior to March 2019 to fill the holes where EU rules and law fall away.

Technical notices

The government’s answer: technical notices. In August 2018, the government launched its guidance on how to prepare for Brexit if there is no-deal, and published the first 25 technical notices. These technical notices cover areas such as applying for EU-funded programmes, farming and fishing, product labelling and safety, business regulations, money and tax and more.

The guidance is, however, very clear in that these technical notices do not reflect an increased likelihood of a no-deal scenario; they are simply an accelerated part of the original plan to deal with a potential no-deal.

These technical notices set out information that will enable businesses and citizens to understand what they need to do in a no-deal scenario and to prepare accordingly. For example, a technical notice published on 24 September 2018 addresses the buying and selling of timber if there is no-deal. The buying and selling of timber is currently governed by EU Timber Regulation (EUTR) and Forest Law Enforcement Governance and Trade Regulation (FLEGT).

Under these regulations, businesses placing or trading timber in the EU and EEA market must take steps to ensure that the timber originates from legal sources, and records evidencing who the timber was purchased from and sold to, must be kept. Timber imported from countries outside the EU which has an operational FLEGT licensing system must be accompanied by a FLEGT license, which confirms compliance with the EUTR.

In order to achieve this, the technical notice makes it clear that the UK will implement its own timber regulation and UK FLEGT regulation, which will have the same requirements as EUTR and EU FLEGT regulations.

Therefore the clear message is that rules, regulations, guidance and policies will be implemented by the government to ensure that regimes governed by EU laws continue to operate as they did before the date the UK leaves the EU.

A recent example of this can be seen in the government’s announcement of a number of statutory instruments in relation to environmental assessment and the planning regime. These instruments do not make any substantive changes to policy, but when the UK leaves the EU these instruments will ensure the continued smooth operation of the following regimes:

• Environmental Impact Assessments (see the new Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018)
• Planning (see Planning (Hazardous Substances and Miscellaneous Amendments) (EU Exit) Regulations 2018)

Comment

These amendments will not be retrospective so there will be no need to re-examine any decisions made before the UK leaves the EU purely as a result of these changes.

Of course, not all EU Regulations and other EU laws will simply slot into UK law without discussion or consideration, and there will be articles, sections, provisions or principles that will not be included. Importantly, it is now the UK’s prerogative to choose those parts it wants.

It is difficult to say whether momentum for these changes will increase as the time we have to deal with a potential no-deal becomes shorter and shorter, as it will most likely follow the fortunes of the negotiations.

However, put simply, the apparent aim of these instruments and changes is to ensure that, as far as is possible, it will be business as usual in the UK after March 2019.

Read other items in the Construction and Engineering Brief - November 2018