BREXIT - No Deal preparations

Summary

A request was made for comprehensive documents regarding the Isle of Man's 'No Deal' Brexit preparations, including meeting minutes, impact assessments, and specific policy details on healthcare and trade. The Cabinet Office responded by releasing some information, specifically a Council of Ministers paper from August 2018, while withholding other requested materials under exemptions.

Key Facts

• The request was submitted on 2019-09-09 and the outcome was determined on 2019-10-04.
• The authority handling the request was the Cabinet Office.
• The outcome was classified as 'Some information sent but part exempt'.
• A disclosed document is Council of Ministers Paper No. 18/221 titled 'Brexit, Secondary Legislation Update'.
• The request covered sensitive topics including civil unrest preparations, NHS privatisation, and food standards.

Data Disclosed

• 2019-09-09
• 2019-10-04
• 23 August 2018
• Paper No. 18/221
• 28 pages
• 5 documents

Exemptions Cited

• Part exempt (specific exemption clauses not detailed in the provided text)

Original Request

On the IOM Government BREXIT portal, the following statement was uploaded: 'The UK Government has stated: A scenario in which the UK leaves the EU without agreement (a 'no deal' scenario) remains unlikely given the mutual interests of the UK and the EU in securing a negotiated outcome. Negotiations are progressing well and both we and the EU continue to work hard to seek a positive deal. However, it's our duty as a responsible government to prepare for all eventualities, including 'no deal', until we can be certain of the outcome of those negotiations.' I am making this request under schedule 1 to the Freedom of Information Act 2015 and the 1996 Code of Practice on Access to Government Information, approved and issued by the Council of Ministers, amended in 2016 and taking effect from 1 February 2016, where * a Freedom of Information request is accessed under my statutory right as a Manx citizen and requests information held by any public authority listed in Schedule 1 to the Freedom of Information Act 2015, and * where the Code of Practice commits Government Departments to: 1. publish the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions; such information will normally be made available when policies and decisions are announced; 2. publish or otherwise make available, as soon as practicable, explanatory material on Departments' dealings with the public (including such rules, procedures, internal guidance to officials and similar administrative manuals as will assist better understanding of departmental action in dealing with the public) except where publication would prejudice any matter which should properly be kept confidential under Part II of the Code; 3. give reasons for administrative decisions to those affected; 4. make available on request: -full information about how public services are run, how much they cost, who is in charge, and what complaints and redress procedures are available; and - full information about what services are being provided, what targets are set, what standards of service are expected and the results achieved 5. release, in response to specific requests, information relating to their policies, actions and decisions and other matters related to their areas of responsibility. The information that I am requesting is all meeting notes, minutes, papers, assessments, impact assessments, lists of key dates, documents (in whatever form), requisition notes and phone transcriptions as well as any other documents that are information pertaining to No Deal Brexit, specifically but not limited to: * Council of Ministers meetings relating to No Deal BREXIT (minutes - full and unabbreviated) * All business, social, GDP and other economic indicator impact assessments and discussion papers pertaining to No Deal BREXIT that have been undertaken by IOM Government and its departments * Isle of Man Chamber of Commerce discussions and meetings * Supply issues post No Deal BREXIT * Civil unrest preparations post No Deal BREXIT * Relaxation of food standards * The sale or privatisation of the Manx NHS or any facets or functions of Manx healthcare * Protection of Isle of Man Fisheries and rights to Manx territorial waters * Access to the Galileo satellite * Negotiations of the future economic partnership with the UK * Free trade agreements between the Isle of Man and any other country or territory * Whether US beef and chlorinated chicken will be allowed to be sold in the IOM * Budgetary concerns and expectations for drawing down on reserves to balance future IOM budgets

Data Tables (17)

Full Response Text

Confidential Page 1 of 9 Council of Ministers Paper No. 18/221 Paper for Council of Ministers Routine Business Department/Board/Office Cabinet Office Chief Officer Will Greenhow Responsible Officer Hirelle Moore, Brexit Legal Officer Cut ups to be sent to Della Fletcher, David Corlett, Hirelle Moore Date of Council Meeting 23 August 2018 Title Brexit, Secondary Legislation Update Collective Responsibility: (Mandatory field, please choose an option) Matter of National Importance Which of the 3 Government Strategic Objectives does this proposal comply with? Island of Enterprise & Opportunity Which of the Council of Ministers Sub- Committees has considered this proposal? Not applicable The proposal relates only to the Department’s core or statutory responsibilities
Core Has appropriate internal and/or public consultation taken place? Not applicable Are there any resource/personnel implications? Not applicable Has Treasury concurrence been obtained where necessary? Not applicable Is the Department acting within its legal powers or has legal advice been obtained? (If yes confirm and provide evidence within the paper) Not applicable Are there any inter-Departmental implications? Yes If yes, which other Departments are involved? All What is the intention of this paper? Information Only Primary Legislation: Has Council Legislation Subcommittee approved the inclusion of the proposed Bill on the Legislative Programme. If Yes please give decision date:
Choose an item. Major Policy Proposal/Primary Legislation:
Have you completed an Impact Assessment? If yes please attach a copy as an Appendix to the paper. Choose an item. Have you taken appropriate Corporate Communications Service advice?
Choose an item. Does this initiative/announcement have a communications plan? Choose an item. Purpose of the Paper:
To provide an update of the legislative progress being made on the Isle of Man to prepare for the UK’s exit from the European Union INTRODUCTION:
Confidential Page 2 of 9 There are currently several legislative work streams ongoing which concern the progress of the European Union (Withdrawal) Bill 2018 (“the Bill”) and the subsequent secondary legislation to be made under it. The purpose of this paper is to explain these work streams and the actions that fall out of them.
For the avoidance of any doubt, the overall legislative programme is progressing on the basis of a “no deal” scenario. A timetable has been prepared for the submission of the secondary legislation, which is included as Appendix 1. This timetable is based on Royal Assent to the Bill being granted no later than January 2019 and secondary legislation being made by the Council of Ministers and submitted for Tynwald approval no later than February 2019. To be clear, the timetable is tight and Departments are required to have finalised their legislative preparations by Friday 30th November 2018 for this to be achievable.
PRIMARY LEGISLATION: In summary, for the purposes of this paper, the Bill repeals the European Communities (Isle of Man) Act 1973 (“the ECA”) but provides the power to preserve the EU legislation which already applies to the Island by virtue of its Protocol 3 arrangement, correct deficiencies in legislation which occur as a consequence of the UK leaving the EU and enable the application of EU Instruments in the future. Council will have already received an invitation to a Members Briefing on the Bill which has been scheduled for the 17th October 2018. SECONDARY LEGISLATION: There are a number of workstreams which fall under this category. 1. Clause 6 work stream – Saving for statutory documents made under the ECA Purpose of the clause The purpose of this clause is to save all statutory documents made under section 2A or section 2B of the ECA. No positive action is required on the part of Government for this initial step. The reason why this is automatic is because, generally speaking, where primary legislation (such as the ECA) provides an enabling power for secondary legislation to be made, if subsequently the primary legislation is repealed, unless expressly saved, the secondary legislation made under it will also be repealed. Therefore if the power to save section 2A Orders and section 2B regulations did not exist, they would fall away on the repeal of the ECA and the consequence would be a gaping hole in the statute book, including the loss of the Isle of Man’s sanctions regime.
Actions for Departments Departments need to consider all legislation made under s2A and s2B that applies to them and identify where there are deficiencies that need to be corrected to ensure post exit operability. This is explained further under the Clause 11 work stream, below. 2. Clause 7 work stream – Retention of direct EU legislation Purpose of the clause This clause addresses the ambiguity which has, to date, existed in respect of Protocol 3 instruments (particularly questions arising as to whether an instrument is or is not Protocol 3), and provides certainty as to what the Isle of Man considers is applicable moving forward. Confidential Page 3 of 9 The clause states that any EU regulation, decision or tertiary legislation, which has effect in EU law immediately before exit day, by virtue of the fact that it is a Protocol 3 instrument and is prescribed by regulations made by the Council of Ministers will form part of Manx law on or after exit day. Crucially, for the Protocol 3 instruments to form part of Manx law they need to be prescribed by Regulations made by the Council of Ministers. The power which the Council of Ministers has to make regulations under this clause is wide and includes the power to prescribe -  Specific EU regulations, EU decisions or EU tertiary legislation either in their entirety or in part;  A generic description or class of EU regulations, EU decisions or EU tertiary legislation;  All EU regulations, EU decisions or EU tertiary legislation which have legal effect in Manx law by virtue of section 2(1) of the ECA immediately before exit day;  Any exemptions, exceptions or exclusions (whether specific or generic) from any prescribed EU regulations, EU decisions or EU tertiary legislation. The European Union Advisory Group has previously considered the above options and agreed to recommend to the Council of Ministers that such regulations should be prescribed specifically, in their entirety or in part. The reason being to provide certainty and to put beyond doubt what is considered to be a Protocol 3 instrument. However, should it be necessary, it is permissible for the Council of Ministers to make regulations that apply everything that had applied pre-exit. Whilst this would not provide the same level of certainty as is proposed, it is essentially the same situation as the Isle of Man is currently in and therefore has to be considered as an option if this is necessary. Actions for Departments 1. This provision mainly concerns DEFA and Customs. Each need to identify which instruments it needs/wants to be prescribed by the Regulations. For each instrument DEFA and Customs also need to prescribe to what extent that instrument is Protocol 3 as this will determine subsequent actions – a. Where an instrument is Protocol 3 in its entirety it can be saved in its entirety by being prescribed under clause 7. b. Where an instrument is not Protocol 3 in its entirety but the non-Protocol 3 portion is of no relevance to the Isle of Man, it can be saved to the extent of that portion that is Protocol 3 by being prescribed as such under clause 7. c. Where an instrument is not Protocol 3 in its entirety and the non-Protocol 3 portion is of relevance to the Isle of Man, then either – i. Before exit day (and the repeal of the ECA) the non-Protocol 3 portion is applied in Manx law by a s2A Order and s2B regulations under the ECA. In that way the non-Protocol 3 portion will be automatically saved after exit day (see above). ii. After exit day and following the prescription of the Protocol 3 portion, that part of the instrument that is non-Protocol 3 can be applied to the Isle of Man by regulations made by the Council of Ministers under clause 16 of the Bill. 2. Each Department will need to consider all of the legislation which it wishes to prescribe under clause 7, including those parts that it chooses to implement under s2A or s2B and Confidential Page 4 of 9 identify where there are deficiencies that need to be corrected to ensure post exit operability. This is explained further under the Clause 11 work stream. 3. Clause 11 work stream – Dealing with deficiencies arising from withdrawal This is by far the largest work stream. There are considerable legislative amendments that need to be made to primary and secondary legislation on the Isle of Man in order to correct deficiencies within the legislation, which will mean that the legislation will not operate effectively post exit. The Withdrawal Bill defines deficiencies and, for information, the relevant section is included as Appendix 2. Examples of deficiencies however, are as follows-  Where legislation refers to a particular word or phrase which is defined in the ECA – as once the ECA is repealed this definition will also be repealed.  References to Members States currently include the United Kingdom. These need to be amended to include the United Kingdom separately. Policy Considerations There are a number of challenges and policy decisions to be made regarding this legislation. The questions are as follows: 1. How is this legislation drafted? The options are as follows - a. Individual statutory instruments for each amendment. The advantage of this being that if one fails to be approved by Tynwald it does not affect the other statutory instruments. The disadvantage being that this will result in a potentially very high number of statutory instruments being drafted and submitted to Tynwald for approval. b. Statutory instruments being grouped by subject area, in this way it would reduce the total number of statutory instruments however, there isn’t a plan as yet as to how these should be grouped. This appeared to be the preferred option at a recent meeting between the Cabinet Office and the Attorney General’s Chambers however this needs to be looked at in more detail. c. One large, all-encompassing statutory instrument. The advantage being that it provides clarity that everything is in one document and therefore arguably it should take up less time as the amendments are very similar to each other. The downside is that if Tynwald does not approve it, none of the amendments can be made. d. Separate regulations under each clause of the Bill (i.e. under clause 7 and under clause 11) or combined regulations by Department, made under both sections that will prescribe legislation and at the same time correct the deficiencies. 2. One of the challenges is that it is difficult, at this stage, to envisage how many statutory documents there will be and this will depend upon any decision as to how to draft the legislation. However, based on the actions that have been identified to date and the content of the Statutory Instruments being received from the UK, the amendments are all likely to be broadly similar. Furthermore, as the timetable in Appendix 1 requires Departments and Statutory Boards to have drafted their legislation by 30th November, at this time, an accurate assessment will be able to be made. 3. Another challenge is the decision as to whether to continue to make any reference to the EU. The statutory instruments that are coming out of the UK appear to remove Confidential Page 5 of 9

all references to the EU. Another option is to keep these and add in a UK reference. The advantage of this is a certain degree of flexibility. The disadvantage is that we may not be following the UK and we need to be cautious not to be drafting something where the converse will not be reciprocated by the EU. Advice recently received from the Attorney General can be summarised in the following points - a. There cannot be a blanket approach to references and each reference will need to be taken in its context. b. As a starting point Departments should be looking to remove the references to the EU and its institutions and replacing them with references to the Island and Manx institutions. c. Similarly, Departments should look to replace references to “the competent authority of a Member State” with references to the appropriate Government Department or Statutory Board (again depending on context). PROGRESS TO DATE:

Below is a table of Departments which have legislation which is affected. Contact has been made with these. To assist with their preparations a drafting plan has been put together for most of them (with the last few being finalised). Departments now need to work on these and make policy decisions regarding the wording. For the Departments where the drafting plan is listed as “being finalised” these Departments are already aware of the legislation that will be in the drafting plans and what needs to be assessed in its respective areas. It is recommended that a Members Briefing on the secondary legislation takes place once the Bill has finished its passage through the Branches but before any secondary legislation is submitted to Tynwald for approval. This has been provisionally arranged for the 22nd January 2019 and is included within the proposed timetable at Appendix 1.

It is now crucial that the delivery of this legislation is escalated within Departments. Whilst we frequently hear that certain areas cannot do anything until we know what the UK is doing, this is only relevant for a change of policy position. The whole purpose of clause 11 regulations is to correct deficiencies and therefore we do not have to (and cannot) wait for the UK. Notwithstanding this, we have started to see more statutory instruments coming out of the UK, and these appear, to date, to be validating our own approach.

Department affected
Drafting plan sent Other implications Cabinet Office Being finalised

Communications Commission Yes UK legislation is applied to the Isle of Man through Order in Council. We have not as yet seen what the UK is going to do in this area however it will require a further Order in Council to be drafted. DESC Yes

DfE Being finalised is liaising with the UK Intellectual Property Office and drafting an Order in Council. There are also other directives which need to be prepared post exit. is preparing the Order in Confidential Page 6 of 9

Council regarding the amendments to the Takeover Panel provisions in the UK Companies Act 2006 (Act of Parliament) which is applied to the Isle of Man. DHSC Being finalised We have met with and she is looking to resource this. Treasury Yes

DEFA

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