If Britain’s parliament has not approved a Brexit deal by the end of February, Prime Minister Theresa May is likely to have to seek a delay to Britain’s March 29 exit from the EU as there will not be time to pass all the required legislation.
Currently, approval is far from certain as May tries to improve on the deal she had agreed with the EU, which parliament rejected last month by a record majority.
But even if she succeeds, it is only the start of a process, and the disorderly exit that many businesses fear remains a possibility.
To avoid this, parliament must pass a law formally ratifying the agreement – providing many more opportunities for wrangling. It also plans a host of related bills and legal tweaks.
The law to ratify the deal cannot even be introduced to parliament until it has approved May’s deal. No date has been set for that vote, but it is not expected to be before Feb. 14, when lawmakers will hold a more general debate on Brexit.
After Feb. 14, parliament has just 26 sitting days left before March 29.
While two senior ministers have said an extension to the Article 50 negotiation period may be needed, May has stuck to the March 29 date.
Maddy Thimont-Jack of the Institute for Government said even a month would barely be enough time to get everything passed: “The later it gets in February, the more difficult it gets.”
Several previous major bills on Britain’s relationship with Europe, including the 2018 EU Withdrawal Act transferring EU law into British law, have taken more than 30 sitting days to pass.
The government is also required by law to lay a treaty before parliament 21 sitting days before it can be ratified, although it can seek an exemption.
Stephen Laws, a former First Parliamentary Counsel overseeing the drafting of government bills, said that, even if parliament was willing to cooperate and the government made concessions, time was running out.
“Once you get past the middle of March, the idea that you are going to get a Withdrawal Bill through by March 29 has to go out of the window,” he said.
Even if the government does want to postpone Brexit, the date is fixed in British law, so the approval of both chambers of parliament would be needed to change it.
CHALLENGING
The government could try to force legislation through on an accelerated timetable — in theory, laws can be passed in a day — but this would require the goodwill of a parliament that has already thwarted the government several times.
The legislation has to pass several stages in both the House of Commons, the lower house where May’s Conservatives do not have a majority, and the House of Lords, where she has less control over timing.
The Withdrawal Agreement Bill would give ministers the power to make financial payments to the EU and also give effect to what is agreed on the issue of the Northern Ireland border, the source of many lawmakers’ opposition to May’s deal.
According to the House of Commons Library, there were more than 100 parliamentary votes during the ratification of the EU’s Treaty of Lisbon and 88 on the EU’s Maastricht Treaty — issues less momentous than Brexit. Party rebellions on the latter nearly toppled the Conservative prime minister of the time, John Major.
“There are going to be contentious aspects to the bill … so you can expect that there will be some tight votes,” said Thimont-Jack. “If MPs feel like the government is rushing through that legislation, not giving them sufficient time to consider it … those majorities might disappear.”
And if May has only won parliament’s backing for her overall deal by a small majority, this could “unravel” during the passage of the legislation to ratify it, one Conservative lawmaker has warned.
PRIORITISE THE ESSENTIAL
The government also plans to pass several other major new bills and hundreds of changes to existing law to adapt Britain to life outside the EU, covering areas such as agriculture, fisheries and immigration.
It has not made clear whether it believes all must be in place before Britain leaves. Trade minister Liam Fox said on Wednesday the government had contingency plans in case the Trade Bill had not passed.
If Britain leaves with a deal, parliamentary experts believe most of that legislation could be dealt with during a planned post-Brexit transition period.
If it fails to reach a deal, however, the need would be more pressing and there would additionally need to be a Financial Services Bill, which gives Britain powers to implement EU financial services regulations.
Barclay said last month that, if there was no deal, the government would have to “prioritise what is essential”.
The more contentious elements of these pieces of legislation could be stripped out or bills could have “sunset clauses” inserted, meaning they would need to be revisited later, to speed up their passage.
“It’s likely to be the only way to get those bills through in a hurry,” Stephen Laws said.
Most are currently stalled; many lawmakers believe the government is avoiding bringing them back to parliament in case they are amended to add conditions.
“There will have to be a call at some point to say: ‘Actually we can’t delay it much longer, the risk of no deal really is there and we need to get this legislation through’,” said the IFG’s Thimont-Jack.
Below is a summary of the Brexit-related legislation that the government intends to pass:
EUROPEAN UNION (WITHDRAWAL AGREEMENT) BILL
Only needed if Britain is to leave with a deal, this bill must pass in order for the Withdrawal Agreement with the EU to have domestic legal effect. But it cannot be introduced to parliament until lawmakers have voted to approve the deal.
It gives effect to the transition period, due to run until December 2020, as well as the rights of EU citizens, a financial settlement with the bloc and an agreement on how to avoid a hard border in Ireland if a future trade deal with the EU cannot be concluded in time.
Many provisions are expected to be contentious, so the bill’s passage is unlikely to be quick.
TRADE BILL
This bill focuses on transposing outside countries’ trade deals with the EU into bilateral deals with Britain. It does not cover future trade agreements with the EU or others.
It sets up a Trade Remedies Authority and gives British authorities new power to collect and share information on exporters.
Trade minister Liam Fox says he is “increasingly confident” it will pass through parliament by the time Britain leaves, but that otherwise there are contingency plans.
FINANCIAL SERVICES BILL
Only needed if there is no deal, it gives Britain power to implement and amend EU financial services regulations that have been agreed or are in negotiation and due to be implemented within two years of Brexit.
The following four bills could probably be passed during a transition period. But if Britain looks set to leave the EU without a deal, the government may try to slim them down in order to rush them through.
AGRICULTURE BILL
Sets out farming and environment policy once Britain has quit the EU and its Common Agricultural Policy.
FISHERIES BILL
Creates a domestic fisheries policy governing foreign access to British fishing grounds, the licensing of fishing boats, and grants connected to fishing and marine conservation.
IMMIGRATION BILL
Ends free movement of people from the EU and repeals other EU law relating to immigration; protects the status of Irish citizens in UK immigration law; and gives Britain powers to amend EU law on social security coordination.
HEALTHCARE (INTERNATIONAL ARRANGEMENTS) BILL
Gives Britain power to fund and implement reciprocal healthcare schemes and share data. It is intended to allow the UK to maintain reciprocal healthcare arrangements with EU countries, but is not limited to the EU and could also allow Britain to implement new schemes with countries outside the EU.
STATUTORY INSTRUMENTS
In addition to new bills, parliament also needs to approve hundreds of changes to existing law to prevent legal ‘black holes’ – where laws will fail to function or become invalid after Brexit.
These changes are made through “statutory instruments” (SI), subject to varying degrees of scrutiny by lawmakers.
They can be used to make changes such as altering the name of a regulator where a law refers to an EU body that will no longer be relevant to Britain.
The government estimates it needs to pass around 500 SIs by March 29.
As of Feb. 5, 398 had been submitted and 119 had completed their passage through parliament, according to the Hansard Society, a pro-democracy research body.
The government can, in an emergency, implement an SI with immediate effect, pending approval within a fixed period.
But it can only do that if the documents have been prepared, and parliamentary experts say government departments are having difficulty drafting them quickly enough.
DELAYING THE EXIT DATE
Having notified the EU of its intent to leave the bloc under Article 50 of the Lisbon Treaty, Britain must exit at 11 p.m. UK time (2300 GMT) on March 29, 2019, unless the other 27 members agree to extend the two-year negotiation period.
Since that date is also enshrined in Britain’s 2018 European Union (Withdrawal) Act, parliamentary approval would also be required to delay the departure.
INTERNATIONAL TREATIES
If Britain leaves with a deal, it will continue to be bound by hundreds of EU international agreements during the transition period. If it leaves without a deal, these will immediately cease to apply, so a large number of replacement treaties will need to be ratified, either before or as soon as possible after March 29.