Author: caribbeantradelaw

Renaldo Weekes, Guest Contributor

On December 12, 2019, the United Kingdom (UK) held its second general election since 2015 which resulted in Prime Minister (PM) Boris Johnson retaining his position as the Conservative party regained the majority it lost in 2017.  It is apparent that Brexit dominated the campaign leading up to the election and some argue that the Conservatives’ win shows that the country is in alignment with PM Johnson’s views on the matter. Now that Mr. Johnson has a comfortable majority of 365 seats in the House of Commons, he is free to push through his Brexit agenda without the shackles of a minority that held him and his predecessor Theresa May back. We have already gotten a demonstration of his new found power as the second reading of his Withdrawal Bill has been passed on December 20 without any hiccups. The Bill that was passed, however, is somewhat different from the Bill the PM presented before Parliament agreed to an election. With a new Bill and a new Parliament, one must now consider what changes are contained in the new deal, the implications of those changes and the road from here on out.

What is in the new deal?

As Boris Johnson inherited a minority Government, he had to grant many concessions to opposition Members of Parliament (MPs) to increase his chances of getting his bill passed. This meant adding clauses favourable to the opposition. They included allowing MPs to approve extensions to the transition period and approve negotiating objectives; aligning UK workers’ rights with those of the European Union (EU) and adhering to the political declaration that accompanied the withdrawal agreement. With a newly secured majority, Mr. Johnson no longer needs to retain those concessions and as such, has removed them. The PM has also taken the liberty of adding his own clauses which, among other things, outlaw extensions to the transition period, grant Ministers power to change laws through secondary legislation and remove the Northern Ireland backstop that his predecessor put in place to prevent a hard border from being erected between Northern Ireland and the Republic of Ireland since Northern Ireland would be leaving the EU with the UK while the Republic of Ireland remains a member.

Implications of changes in the new deal

With no ostensible obstacle in Mr. Johnson’s way, one must seriously consider the implications of the changes to his withdrawal bill as they will likely become law. The removal of the concessions previously granted to MPs essentially strips power related to Brexit away from the Commons. Concomitant with that is the granting of Ministers with more power over the process. This bolsters Johnson’s position as he no longer has to submit to what may be an uncooperative House of Commons.

Of main concern to the main opposition UK Labour Party was UK workers’ rights not being aligned with EU workers’ rights. Much of the UK’s employment standards are derived from EU standards so leaving the EU without any guarantee that EU standards will be retained is quite concerning for good reason. Mr. Johnson has not completely dismissed the idea, however, as he opted to address the issue of worker’s rights in a separate employment bill. The question is how long will it take for his Government to address those issues? This also brings up the broader question of the UK’s ability to make its own laws which was a motivating factor behind Brexit. Some argue that Brits should have faith that their country can competently draft its own laws. Some go further by saying that in many respects, UK law actually goes further than EU law. For example, UK maternity law goes up to 52 weeks versus the EU’s 14 week minimum.  Employer-employee relationships will certainly change as employers may have less responsibility to their employees, even if only for a short time.

The decision to outlaw extensions to the transition period signals to MPs and the wider public that the Prime Minister is serious about getting Brexit done, even if no deal is reached by the end of the transition. In the context of almost back-to-back general elections, MPs’ stubbornness and a divided UK, Mr. Johnson feels it is his duty to end the Brexit issue, no matter what. As mentioned earlier, the fact that he returned with a comfortable majority reflects that the public agrees with him. His attempt to prevent an extension to the transition period may not necessarily stand as, depending on how negotiations go, he may seek an extension and amend the law as necessary.

PM Johnson’s new arrangement for Northern Ireland is one that is welcomed by many Brexiteers who previously opposed Mrs. May’s backstop because they viewed it as tethering the UK to the EU; preventing a true Brexit. They did not buy into the idea that the backstop was necessary. Under Mr. Johnson’s new bill, Northern Ireland will be a part of Great Britain’s customs territory but will remain somewhat aligned to the EU’s single market. This creates special status for the territory and goods travelling between it and Great Britain. Goods travelling between the two areas will be subject to EU tariffs and other EU procedures if they are at risk of moving into the EU, whether in part or in whole.

Critics argue that this new arrangement divides the UK by virtue of checks that will have to be performed on goods travelling between Northern Ireland and Great Britain; similar to what would have happened between Northern Ireland and the Republic of Ireland. Given the large amount of goods that will be subject to checks due to trade that occurs between the UK and EU members, especially since Northern Ireland and the Republic of Ireland share a physical space, the UK divide is a real possibility in theory. In practice, however, the UK will be free to make ambitious trade agreements with countries all over the world including the US, the UK’s largest trading partner. This may help to mitigate any UK dependence on the EU and thus, mitigate any split that may occur between the Northern Ireland and Great Britain.

Considering that Northern Ireland will be partially under two different regulatory regimes, the UK and the EU will have to coordinate with each other to ensure that goods travelling through the territory are classified correctly. The UK has also taken the extra step of giving the Northern Ireland Assembly the ability to consent to the arrangement. If the assembly decides to not retain it, then the issue of the hard border will arise once again, meaning that in theory, the issue is not completely solved. Given the consequences should they not consent, the assembly is likely to approve.

The road from here

Passage of PM Boris Johnson’s Brexit bill without any major defections from his party shows that we are on our way to the Brexit that many envisioned we would have since March 29, 2019. ‘Remainer’ MPs and citizens hoping to have Brexit reversed have even less of a chance of doing so in the face of a more united Conservative party; though the chances were already quite slim. The chance for even a delay has been, on its face, eliminated as the Government has made it illegal to delay the transition period, thus making no extra time for negotiations. Though this may be subject to change if the Government has a change of position, without the pressure from the House of Commons that PM Boris Johnson and his predecessor had before the December 12 general election, it is very unlikely that this will be the case.

With a more certain path for the UK’s future, UK businesses and citizens, and the wider world can rest assured that plans for their future will no longer suffer from uncertainty either. The constant questions of “will they?” or “won’t they?” may no longer pervade casual discourse. Though some persons will still argue that the UK should not leave the EU, the voters have spoken twice; in the 2016 referendum and in the 2019 general election. Nevertheless, considering how divisive Brexit has been since the referendum results were announced, we can only hope the PM Boris Johnson secures the best he can for the UK and mend a country that has been too focused on Brexit, much to its detriment at times.

Renaldo Weekes is a holder of a BSc. (Sociology and Law) who observes international affairs from his humble, small island home. He has keen interest in how countries try to manoeuvre across the international political and legal stage.