There have been lots of questions about whether the transition period now needs to be extended as the response to the coronavirus emergency takes up the capacity of both the UK and the EU. There are also questions about what the process for extending the transition period looks like and whether the UK will, in fact, be ready to exit the leave the transition period by the end of 2020 in light of the current emergency.
The process of extending: time is of the essence
There is a clear path to extending the transition period, albeit a more complicated one than that of extending Article 50, which essentially included an agreement between the EU27 and the UK to amend the exit date in UK law, which could be done by a Minister changing regulations.
Extending the transition period will require agreement in the EU-UK Joint Committee by no later than 1st July 2020. In essence, the Joint Committee is a body created by the Withdrawal Agreement and is tasked with overseeing and monitoring the Withdrawal Agreement.
Before an agreement is reached in the Joint Committee, the EU Commission has to secure approval from all member states. On the UK side, the Government would legally have to bring forward primary legislation to facilitate an extension. This is because the Government, in January, legislated to prohibit ministers from agreeing to an extension to the transition period. Further, time is of the essence here because Article 132 of the Withdrawal Agreement sets out that any decision to extend the transition period must be done before the 1st July, meaning, presumably that if both sides want to extend, they both have to start rolling out the processes outlined above sooner rather than later.
Will the UK be ready to exit the transition period at the end of 2020?
There is still a lot of uncertainty about what the exact consequences will be if the transition period is not extended. A further possible scenario, made more likely by not extending in the current circumstances, is the UK leaving the transition period without a deal at the end of 2020.
With the UK Government and EU member states rightly occupied with the coronavirus emergency, it is not surprising that the same level of attention and capacity cannot be paid to the negotiations.
Leaving without a deal at the end of 2020 in the midst of a global pandemic is seen as problematic. As the UK in a Changing Europe has written it is ‘hardly sensible to overlay a further and entirely self-inflicted hit to the UK economy’.
There remain several issues with preparedness- can the Government reasonably expect, in these difficult and uncertain times, that business, civil society organisations and individuals will be ready to exit the transition period, and have adapted to a new trading regime and other complex changes by 1st January 2021?
Further, will there be enough time to pass and, importantly, adequately scrutinise the necessary Brexit legislation between now and December 2020? At the time of writing, remote voting in Parliament is due to start in early May. That means that the key pieces of legislation necessary to facilitate UK’s exit from the transition period might be brought back to Parliament and could be passed in time for December 2020, especially when the government holds a majority of 80. The key question, however, is what level of scrutiny will be afforded to these Bills in the midst of a global pandemic? Then there is the practical question of setting up various governance bodies due to replace EU agencies such as the Office for Environmental Protection, which can only start once the Environment Bill is passed.
When the transition period ends, powers previously exercised at an EU level will be returned to the UK, including areas that intersect with the competence of the devolved administrations. The UK and devolved governments have agreed that in some areas, it will be necessary to establish and implement common policy and approaches by the end of 2020, across the UK in areas such as justice, the environment, health, agriculture and fisheries. Will there be enough time to agree, establish and implement these common frameworks when the UK and devolved governments are consumed by the current emergency? In the latest update provided by the Government, no information was given about how many of these frameworks have been implemented and how likely it’ll be that they are in place by the end of 2020.
Across all of these areas, time is of the essence. If there is one thing the UK Government does not have the luxury of right now, it is sufficient time to negotiate and implement all the changes required to facilitate our exit from the transition period by December 31st 2020.