On 13 March 2019, the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019 (the “Brexit Act”) passed through the Committee and Remaining Stages of the Seanad and was accordingly sent to the President for signing.

Our previous article on the Heads of Bill examines this Brexit omnibus legislation in its entirety. This article examines the commencement provisions of the Act, the substantial amendments to the Act since its initiation in the Dáil on 20 February 2019 and the contentious discussion surrounding the grant of Ministerial powers contained in the Act.

Commencement

The Brexit Act contains commencement provisions empowering the relevant Ministers to enter their Parts of the Act into operation by Statutory Instrument on a day they so order. The power to enter certain Parts of the Act into operation is general and is not tied to the event of a “no-Deal Brexit” or any other Brexit-related event.

Substantial Amendments to the Brexit Act

The Brexit Act largely remains unamended from its form as initiated on 20 February 2019. The primary and relevant amendments concern:

• a requirement for the relevant Minister to report to the Dáil on the provision of support to maintain and grow employment in non-exporting indigenous local business;
• an equivalence certification regime for UK individuals and companies working in the EU-regulated fluorinated greenhouse gas industry.
• a precautionary protectionary measure in the event the UK fails to apply a VAT retail export scheme to UK-EU passenger traffic (see our Tax-specific analysis here); and
• an amendment concerning the applicability of excise reliefs for UK-bound passengers (see our Tax-specific analysis here).

Oireachtas Debate concerning the grant of Ministerial Powers

Some members of the Oireachtas were concerned with the powers afforded to Ministers under the Act to mitigate Brexit-related events and the lack of time for the Oireachtas to review the powers appropriately.

An amendment was tabled which sought to impose a requirement that Ministers report to the Oireachtas on the functioning of the Brexit Act and the use of their powers in six months’ time.

The Tánaiste Simon Coveney assured the Seanad that, rather than a specific legislative measure, such as the amendment tabled, it is the Government’s intention to provide for the review of the Act via existing parliamentary mechanisms (namely, Dáil Standing Order 164A and Seanad Standing Order 168).

Additionally, the Ministerial powers do not allow Ministers to introduce new legislation in new areas of policy, but rather, equip Ministers with the power to maintain the status quo of already existing arrangements and rights between the United Kingdom and Ireland.

Ultimately, the amendment was withdrawn.

For further analysis on the Act contact any member of the William Fry Brexit Group for further information.