Beware the accidental Brexit

There is a lot of talk about what type of Brexit the UK is heading for.  In the last week you’ll have heard about a ‘blind’ Brexit a ‘hard’ Brexit a ‘clean’ Brexit or even no Brexit at all.


However, what hasn’t been made clear by many of the commentators, is that hard wired into UK law is a Brexit clock.  You can see our version here.  This clock has been set in constitutional stone by section 20 of the EU Withdrawal Act 2018.


As fundamental principle of UK law, the Withdrawal Act can only be amended by another Act of Parliament.  Statements by politicians, amendments to motions on the Withdrawal Treaty to be debated in the coming weeks, petitions, every taller placards etc.  None of these can change the law of the United Kingdom.  There has to be new legislation.


Given the way that the parliamentary business works, it is the Government that is responsible in most cases for passing legislation.  There is an outside chance that the opposition, or a backbencher, could try and use a private members’ route.  However given the Government effectively controls the parliamentary timetable, this seems highly unlikely.  You only have to look at the way that Christopher Chope MP kills bills dead, with a single word, to see what a difficult route this would be.


The reason that the deadline was hardwired into legislation in the first place goes back to the litigation over Brexit that occurred after the referendum.  Had it been left to its own devices the Government might have decided to keep things as fluid as possible.  If it were not for the Gina Miller’s Supreme Court Case ‘remainers’ might now be able to stop Brexit with the stroke of a parliamentary pen.  However, the Supreme Court’s decision led to the Government putting the whole business into law and the then Brexit Secretary Rt. Hon David Davis MP inserted a fixed end date into the Withdrawal Act itself.


Therefore, if as it seems increasingly likely, Parliament rejects the Prime Minister’s deal on the 11th December, we will be just over three months away from the hard wired Brexit date.  Barring further action the UK will be leaving without a deal.  Unless and until the Government agree another deal or legislation is passed by Government to alter the departure date; we’re leaving and that’s it.


Despite the Bank of England’s apocalyptical warnings, at the time of writing the opinion polls are if anything hardening in favour of leaving without a deal.  The British people can see that the EU is not being an honest broker.  It would therefore be a very brave Government or opposition that tried to change the departure date.  It would be an especially courageous Conservative, as the party has tilted so heavily to Brexit in recent decades.  Unless the EU changes their firm line and allows some sort of alteration to May’s deal, such as scrapping the backstop, we are heading for what some have called a hard Brexit.  A clean break from the EU club.


This week has seen MP’s such as Yvette Cooper question the PM’s resolve to deliver a no-deal Brexit.  There is also the possibility that there could be a new Prime Minister after the vote is lost.  However, it is difficult to see how anybody else could do anything different in the short time available.  The EU has said from the start that it is not prepared to compromise on certain matters and it is constrained from negotiating a trade agreement as long as we’re still in the EU.  It would certainly be open to a Government to change the law and postpone the departure point.  However, this would expose the Conservatives to huge political risk, even if they could unite coherently around a single leader and a new plan.


That Brexit clock written into UK law is still ticking.  Very soon, whatever the outcome, we are going as a nation to have to work on the basis of no deal.  Some sectors are already quite advanced in this, the financial sector, ironically due to the 2008 crash, is well prepared and stress tested.  Pharmaceuticals firms have at some expense been building up stockpiles of drugs.  What is less clear is what is happening outside the large firms and in organisations who don’t have a detailed appreciation of all the nuances of their supply chain.  Many of these firms will simply not be affected by Brexit at all.  Some might be in for a nasty surprise.


What is certain is that the political picture in the UK isn’t going to get any clearer any time soon.  If you haven’t considered how a clean or no-deal Brexit might affect your firm now is the time to do it.


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