UK, EU27 and EEA businesses need to start planning for a No Deal Brexit on 31 October

New UK premier, Boris Johnson, said last week that the UK must leave the EU by 31 October, “do or die, come what may”.

This means UK, EU27 and EEA companies now have less than 100 days to prepare for a UK No Deal Brexit. That’s less than 70 working days – and even less if you plan to take a holiday over the summer.

If the UK leaves without a deal, it will also leave the Single Market and the Customs Union. So everything will change overnight – 400 million Customs Declarations will likely be needed each year, plus compliance with Rules of Origin and thousands of other major/minor regulatory changes.

Of course, it is still just possible that the UK might change its mind. Or that the new UK government might persuade the EU27 to give up the so-called “Irish backstop”. This aims to avoid the need for border controls between Northern Ireland and the Republic of Ireland.

But neither outcome looks very likely today.

THE AUTO INDUSTRY IS ALREADY WARNING OF THE RISKS AHEAD 
Businesses therefore now need to prepare for a No Deal Brexit on 31 October.

What does this mean?  It means that companies have to assume there will be no transition period. Instead, the UK will operate under WTO rules.   The UK car industry has highlighted the risks this creates in a letter to the new premier:

“We are highly integrated with Europe, and a no-deal Brexit would result in huge tariff costs and disruption that would threaten production, as well as further undermining international investors’ confidence in the UK. We need a deal with the EU that secures frictionless and tariff free trade.

“A no-deal Brexit presents an existential threat to our industry.  Above all, we must ensure the sector continues to enjoy — without interruption — preferential trade with critical markets around the world, including the EU”.

The chart above highlights the potential impact on the Nissan car factory in NE England.

THE NEW UK GOVERNMENT IS NOW PREPARING A MAJOR COMMUNICATIONS CAMPAIGN

Cabinet Office minister, Michael Gove, has been put in charge of No Deal preparations. And the aim is to quickly launch a major communications campaign to help the public and businesses get ready for leaving the EU without an agreement. As Boris Johnson said last week:

“What we will do, is we will encourage people in a very positive way. From the get-go, we start saying, ‘Look, what do you need, what help do you need, what reassurances do you need?’”

This will add to the information already available by clicking on the Gov.uk website:

READY FOR BREXIT PROVIDES PLANNING AND AUDIT TOOLS, PLUS DETAILED LINKS  

A No Deal Brexit will impact companies and supply chains.  This is why I co-founded Ready for Brexit a year ago, with a number of highly-experienced industry colleagues. It is subscription-based, and features detailed Brexit checklists, a No Deal Brexit planning tool and a BrexSure audit tool to check your suppliers and customers are also fully prepared.

It focuses on the key areas for business, as our Brexit Directory above shows:

  • Customs & Tariffs: Export/Import Registration, Labelling, Testing, VAT
  • Finance: Payment Terms, Tax & VAT, Transfer Pricing
  • Legal: Contracts, Free Trade Agreements, Intellectual Property
  • Services & Employment: Banking, Insurance, Investment, Property
  • Supply Chain: Documentation, Regulation, Transport

We can all hope that Johnson’s renegotiation with the EU27 is successful. But hope is not a strategy.

With the new government committed to the 31 October deadline, businesses really are taking an enormous risk if they don’t focus all their energies on planning for ‘No Deal’.

Wishful thinking dominates Brexit debate as the UK heads towards No Deal on 31 October

One of the best things I learned at school was the simple mnemonic:

“To ASSUME can make an ASS of U and ME”

Unfortunately, most of those involved in the UK’s Brexit debate have failed to remember it.  As a result, it seems likely that the UK will end up leaving the European Union on 31 October with No Deal.

The problem comes down to the set of false assumptions summarised in the slide above:

  • Don’t worry, history shows the UK won both the Battle of Waterloo and World War 2 by small margins – the Prussians arrived just in time to help win the Battle of Waterloo in 1815, and Hitler called off the Battle of Britain just before the RAF ran out of aircraft and pilots in 1940
  • The terms of the Withdrawal Agreement were only a bluff. German auto manufacturers will never allow their UK sales to be jeopardised.  And countries such as France, Italy and Spain will soon reverse course once they realise they might lose their UK tourist income
  • Everybody knows that Parliament would never allow a No Deal Brexit to take place, and so there’s no need to actually make the case for why it might be a disaster. After all, the Speaker said last week that he would probably allow an emergency debate if it ever looked likely
  • Company chiefs in favour of Leave have been prominent in the Brexit debate, but bosses who favour Remain would risk upsetting Leave customers if they did the same.  And anyway, everybody knows that in the end, someone will appear with a magic wand to make everything end happily

These are all arguments that have been heard everyday for the past 3 years.  The problem is that they are simply wishful thinking, and yet are never challenged.

The success of the Brexit Party in the European elections makes it almost certain that the next Tory leader will be a hard-line Brexiter.  As the chart shows from YouGov polling, most Conservative Party members (who will make the final decision) actually voted for the Brexit Party rather than the Conservatives in the election.

Similarly, it seems highly likely that No Deal will be the base case for most Tory leadership hopefuls.  And the position of Boris Johnson as front-runner is very clear, as the Leave.UK poster confirms.

Given that the leadership election is already underway, we also know how events will likely play out:

  • The new Tory leader will be elected in July, ahead of everyone’s summer holidays in August
  • Brussels will quickly refuse their demand to renegotiate the Withdrawal Agreement
  • The new premier will dismiss this as bluff during September and at the Party Conference
  • The UK will then leave the EU without a deal on 31 October

After that, either the new EU Commission will make a hurried phone call, saying it is all a terrible mistake.  Or the UK will find that 31 October was just “the end of the beginning”, and will instead start the lengthy process of negotiating a free trade agreement – whilst the EU implements their Preparations for a No Deal Brexit..

THE TIMETABLE FOR AVOIDING NO DEAL IS VERY SHORT
The key issue, as the independent Institute for Government (IfG) has noted, is that:

“A new prime minister intent on No Deal Brexit can’t be stopped by MPs.”

It is also clear from recent statements from Labour leader, Jeremy Corbyn, that he continues to regard a second referendum as very much a last resort, as The Guardian reported last week:

“Speaking in Dublin, the Labour leader said the only way to break the deadlock would be a general election or a second referendum after negotiating a softer Brexit deal with Brussels.”

Corbyn knows very well that a new Tory premier is most unlikely to seek a “softer Brexit deal”, and he also knows that it would be impossible to negotiate a new deal before 31 October.  It would be almost impossible even to organise a General Election before 31 October, as the IfG have also explained:

  • The election would have to be held by 24 October, as  the UK will otherwise leave by default on 31 October under the terms of the extension agreed under last June’s Withdrawal Act
  • The Fixed Term Parliament Act (FTPA) means the government would have to lose a second vote of confidence by 16 September to allow 25 days for campaigning, and 2 days for “wash-up” (deciding which bills can become law before dissolution)
  • The FTPA also mandates 2 separate votes of confidence, with a 14 day gap – so the 1st vote has to be held by 2 September ie the day that Parliament probably returns from its summer holidays

This tight timetable also raises an unanswered question as to when the vote of confidence would actually be tabled, if parliament is in recess?

Wishful thinking and wrong assumptions have dominated the Brexit debate. So there is little reason to assume anything will now stop the UK leaving on 31 October, in time for Halloween celebrations.

Afterwards, of course, everyone will be free to blame everyone else for “not making it clear what would happen”.  But that is always the result when wishful thinking is involved.

Most businesses were nowhere near Ready for Brexit last Friday – we mustn’t make the same mistake again

Thank goodness for backbench MPs and the European Union. Without their efforts, the UK would by now have left the EU without any trade deals, or ongoing relationship with it’s biggest export market.  And as the Duke of Wellington said in another context, “It was a damn close-run thing”:

  • In a historic vote, MPs decided by just 1 vote to force the government to ask for a longer extension
  • The EU Council argued into the night on its response, but decided to give the UK “a second chance”

The problem was well expressed in a tweet by former Brexit Secretary, David Davis, on Friday morning:

His tweet completely ignored the views of all the main business organisations and trade unions, who had spent weeks trying to point out that issuing government statements and Guidance Notes was not the same as actually being prepared, as The Guardian noted:

“Frances O’Grady, the general secretary of the TUC, and Carolyn Fairbairn, the CBI’s director-general, wrote last month before the crunch EU summit in Brussels: “Our country is facing a national emergency. Decisions of recent days have caused the risk of No Deal to soar. Firms and communities across the UK are not ready for this outcome. The shock to our economy would be felt by generations to come.””

On Friday, confirming their lack of understanding of business needs – and against the advice of senior civil servants – ministers decided to completely stand down No Deal preparations.  Yet as the independent Institute for Government have warned:

“Despite the delay, a No Deal exit is still very much on the table, either on 31 May or 31 October… Businesses and the public should not be left to read between the lines of individual departmental press notices.”

It is therefore critical that UK and EU27 businesses now take the opportunity of the extension to understand and prepare for the changes that will affect them if the UK does leave the EU.  For all the talk of a new referendum, this is still the law of the land.

Our surveys at Ready for Brexit have consistently shown that 80% of small businesses weren’t ready for Brexit. Some had stockpiled some essential goods, but only around one fifth had actually thought through a detailed plan.  As a result, many people have had sleepless nights in recent weeks as they realised the UK might well be leaving with No Deal.

Now that the UK has an extension, it is time to stop panicking and start preparing. None of us can afford to be complacent – No Deal remains the default position and businesses need to know how Brexit will affect them in key areas for their future:

  • Customs, Tariffs and Regulations.  No one has needed to fill out Customs Declarations for EU trade for 25 years. HMRC has warned that following Brexit, businesses may need to make 400 million Customs Declarations at an expected cost of £32.50 each. Compliance with Rules of Origin could easily cost more, if legal advice is needed. Companies need to identify how Customs and Regulatory requirements could impact their business and plan to put the correct procedures in place
  • Supply Chains.  Will your business be affected by interruptions in supply chains following Brexit? You need to audit your supply chain partners to identify potential weak links. It only takes one missing item to shut down a production line. And think about what may happen to your cash flow if forecast delays take place at the ports
  • Sales Agreements.  Do you have Material Change clauses in your commercial contracts?  You need to check out key areas such as your ability to pass on the costs of tariffs, customs delays and exchange rate movements, as well as the impact of possible regulatory changes. Governing contract law also needs checking as the UK will no longer be a member of the EU
  • Employment. You need to understand how the status of UK-employed EU citizens may change and check out the position of UK staff working temporarily or permanently in EU countries. Don’t forget basic areas such as whether professional qualifications obtained in the UK will still be valid in the EU after Brexit, and the possible need for international driving licences

We have all had a lucky escape in the past few days. But we can’t rely on our luck holding.  Planning now for whatever may happen in the next few months may well save you months of heartache later on.

This is why, with some highly experienced colleagues, I helped set up Ready for Brexit.  As I wrote here in June:

“We are particularly concerned that many small and medium-sized businesses (SMEs) – the backbone of the European economy – are failing to plan ahead for Brexit’s potential impact.”

We can all hope that politicians now step back, and work together to avoid the disaster of a No Deal at the end of May or October.

But hope is not a strategy – particularly when the future of your business may be at stake.  If you need detailed help in the form of Brexit Checklists and planning tools, they are all there on the Ready for Brexit site.

 

BASF prepares its UK supply chain for Brexit

BASF has been working with Ready for Brexit (the online platform I co-founded last year) as part of its programme to prepare its UK supply chain for Brexit.  Here, Ready for Brexit’s editor, Anna Tobin,  reports on the workshops that BASF has been running this month for SMEs.

The world’s largest chemical business, BASF, has a large network of companies in the UK. Over the last few weeks, it has run a series of workshops for those working in its supply chain to ensure that its UK infrastructure is as ready as possible for Brexit.

Of all the UK’s industrial sectors, the chemical industry is likely to be one of the worst hit by a no-deal Brexit. It contributes £15bn annually to the UK economy and it is the UK’s largest manufacturing exporter, with 60% of its exports going to the EU. As the lynchpin of this industry, BASF is doing everything it can to prepare the UK’s chemical industry for Brexit. Working with the Government and in collaboration with every link in its supply chain has been the focus of BASF’s Brexit preparations.

BASF has worked closely with Ready for Brexit to highlight key areas for attention to its SME partners. Over the last month, it has run a series of workshops for SMEs in its supply chain involving presentations and question and answer sessions with Government advisors, senior figures at BASF, logistics and customs experts.

Logistics
Bill Bowker, director of transport and warehousing company Bowker Group, which has been working with BASF since 1986, headed one workshop. He explained to his audience that as part of his Brexit contingency planning he has increased his storage space and staffing, obtained ECMT permits and ensured that his drivers have international driving licences and green cards; while he is advising his customers to increase their stock levels and ensure that all shipping information is correct to minimise delays.

Abram Op de Beeck, BASF’s customs and foreign trade manager, advised attendees to get an EORI number as soon as possible, to sign up for Transitional Simplified Procedures for customs and to consider appointing a customs agent to simplify the management of their customs declarations.

DEFRA
Alun Williams, who is working on EU exit for chemicals and pesticides at the Department for Environment Food and Rural Affairs (DEFRA), explained that the Government is working to ensure that any new UK regulatory systems will mirror the existing EU systems as far as possible to minimise costs to industry. He also said that they were endeavoring to minimise disruption to integrated supply chains for chemicals, will continue to monitor and evaluate chemicals in the UK to reduce the risk posed to human health and the environment; and that they would be maintaining existing standards of protection for human health and the environment.

He conceded that businesses looking to operate in the UK and EU markets will have to work with two regulatory systems. To maintain access to the EEA market, UK REACH registration holders will need to transfer their registrations to an EEA-based organisation. And to maintain UK market access to existing UK-based REACH, registrants must sign up to the new UK IT system in the first 120 days of the UK leaving the EU. The other alternative is to ask your EU/EEA supplier to appoint a UK-based Only Representative to ensure UK REACH compliance.

Williams explained that to register a new chemical for the EEA market, UK companies must register with ECHA via an EEA-based customer or Only Representative. To register a new chemical for the UK market, UK companies must set up an account on UK REACH IT and register the new chemical.

BEIS
Fiona Hitchiner, senior policy advisor chemicals at the Department for Business Energy and Industrial Strategy (BEIS), pointed people towards the Government’s tariff checker and advised them to review their contracts and International Terms and Conditions of Service to show that they are now an importer/exporter and to establish responsibilities with their suppliers and customers. She also reminded attendees to check whether they could save money and help cash flow by using a duty relief or deferment scheme and reiterated the need to obtain an EORI number and to register for Transitional Simplified Procedures.

The day-long workshops were full on, but that is why BASF has put on these events. It wants to get the message across that there is a lot to do to prepare for a no-deal Brexit, and that preparation is vital to minimise the expected ill-effects.

Companies and investors have just 30 working days left to prepare for a No Deal Brexit

Companies across the UK and EU27 are suddenly realising there are now just 30 working days until the UK will likely abandon its 45-year trading relationship with the EU, and start to trade on WTO terms.

If this happens, every supply chain involving a movement between the UK and EU27 will change. And all those supply chains governed by EU deals outside the EU will also change. A large number of industries are already being impacted:

  • Scotch whisky exports to Korea worth £71m ($90m) a year, risk a 20% tariff after 29 March if the EU’s Free Trade Agreement is replaced by WTO rules. It is now too late to export by boat, causing some exporters to use expensive air freight to beat the deadline. But capacity is already almost full.
  • Many banks, insurance companies and asset managers have already moved staff from London into the EU27.  They cannot risk waking up on 30 March to find they can no longer serve customers from London, because they have lost the essential EU “passport”.
  • “CE Marks” issued in the UK will no longer be valid in the EU27 after No Deal  – making it difficult to sell any goods that need safety, health or environmental approval.
  • And last week, BASF’s UK MD, Richard Carter, told Ready for Brexit that for the world’s largest chemical company: “The thought of having to re-register with a UK REACH equivalent if there is no deal and if there is no recognition equivalence is a huge concern”.

THE UK REMAINS ON COURSE TO LEAVE THE EU WITH NO DEAL ON 29 MARCH
But surely, you say, “this cannot happen”.  After all the UK’s main business organisation, the Confederation of British Industry, has already warned that No Deal would create “a situation of national emergency“.

But the leading Tory Brexiters don’t believe this.  Their 111 votes, combined with the 10 votes from the Democratic Unionist Party, meant premier May’s Withdrawal Agreement was defeated by 230 votes last month.  It would have provided a Transition Agreement until the end of 2020.

However, their votes then swung behind her to defeat the motion of No Confidence in the government, which would have led to a general election.  Why did they do this, you might ask, given they had just voted against her key policy?

The answer is that the Brexiters have a completely different view of the Brexit negotiations, as I noted in The pH Report last year.

They simply don’t accept the CBI argument. Instead they believe the EU27 will be the main losers from No Deal as they argue the financial outcome will be:

“Plus £651 billion ($875bn) for the UK versus minus £507bn for the EU: it could not be more open and shut who least wants a breakdown.“

In their view, the best way to force the EU27 to offer a better deal is simply to leave on 29 March.

They also, as I noted here in December, will be quite happy to see the end of key industries such as autos, as the leading Brexiter economist Prof Patrick Minford told the Treasury Committee in October:

You are going to have to run it down … in the same way we ran down the coal industry and steel industry. These things happen.”

The alternatives to No Deal are now also extremely limited.  The Caroline Spelman/Jack Dromey resolution to block No Deal was passed last month by 8 votes. But it was only a resolution and has no legal force.

Of course, Parliament might change its mind and decide to vote for May’s Agreement.  Or the government might revoke its Article 50 notification before the UK leaves on 29 March. But both would split the Tory and Labour Parties and are unlikely to happen.

The government could also decide to hold a second referendum. But again, this would split both parties and is unlikely.

It is therefore hard to disagree with the independent Institute for Government, who concluded: “Britain’s politicians are unwilling to put jobs and the economy above party politics.

The only other option is for MPs to effectively take over the government by demanding that it stops No Deal.  It is not clear how this could happen, but presumably they could pass legislation demanding that May asks Brussels for a lengthy extension to Article 50.

But such a move by Parliament has never happened before. It would need key Ministers such as Chancellor Philip Hammond to vote against their own government. It would also need support from enough Opposition MPs to overcome Brexiter resistance.

It would also risk a constitutional crisis, as it would replace an elected government.  And in terms of practicalities, it would presumably also mean that the UK would take part in the EU Parliament elections, as it would still be a full EU member in May. The whole process would take the UK into completely uncharted water.

THERE ARE JUST 30 WORKING DAYS LEFT TO PREPARE FOR A NO DEAL BREXIT

Anticipating this risk led me to co-found Ready for Brexit last year, to help businesses navigate the challenges and opportunities created by Brexit.

It is effectively the one-stop shop requested recently by the CBI.  It provides curated links to all the areas where you may need to urgently prepare for Brexit.

The video explains what WTO rules could mean for your business. Please watch it now, and then decide if you need to start planning today for whatever may happen on 29 March.

No Deal Brexit remains UK law unless MPs reverse their previous votes

That couldn’t happen” are probably the 3 most dangerous words in the English language. They mean “I don’t want to think about something that might be painful“. So if you hear MPs saying a “No Deal Brexit can’t happen“, ignore them. They are wrong.

‘NO DEAL’ BREXIT IS THE LAW OF THE LAND
The issue is simple, yet seemingly too painful for most MPs and commentators to accept.

The EU Withdrawal Act (2018) became law on 26 June last year.  It set 29 March 2019 as Brexit Day.  It allowed for a Transition Agreement if a Withdrawal Agreement was agreed. Without a Withdrawal Agreement, the UK simply leaves with No Deal.

The law is the law, and the Act is primary legislation, which means it has since been incorporated in a whole range of laws and regulations as part of the UK’s exit preparations.  It cannot, therefore, be overturned by statements that claim “There is no majority for No Deal”.

In fact, during the Committee stage, the House of Commons voted 320-114 in Committee Stage against staying in the Customs Union.  It also voted 319-23 against a second referendum. And last week, MPs voted 432-202 against the proposed Withdrawal Agreement.

So if MPs say “No Deal can’t happen”, they are wrong. They have already voted for ‘No Deal’.

CHANGING PRIMARY LEGISLATION IS VERY HARD

Of course, MPs could still change their minds. But there are now less than 70 days till Brexit.  And they would also have to agree this with the other EU 27 countries.  These represent nearly 450 million people versus the UK’s 66 million.

Equally important is that the UK has been heading in this direction since negotiations started:

Since then, MPs have voted for the Withdrawal Act; against remaining in a Customs Union; against a new referendum; and against the Withdrawal Agreement. They have also voted for invoking Article 50 and for setting 29 March 2019 (by 498-114 votes) as Brexit Day.

So time is running out for them to change their minds.

THE ALTERNATIVES TO ‘NO DEAL’ ARE CURRENTLY WISHFUL THINKING

The politics of Brexit also make it unlikely that the government will change its mind, or be forced to change its mind:

  • Theresa May knows very well that any move to “soften” Brexit by joining a Customs Union would split her Conservative Party down the middle. And any Tory MP who voted for a softer Brexit knows they would likely be deselected as a candidate and lose their job
  • Labour leader Jeremy Corbyn voted to leave the EU in the 1975 referendum, and against the Maastricht/Lisbon Treaties. Many traditional Labour voters are also strongly pro-Leave. So any Labour MP voting against the Party line also faces the risk of deselection

It is therefore hard to see why simply extending Article 50 beyond 29 March would change anything.

And extending would enormously complicate the European elections in May. At the moment, the UK is not taking part in these, as it is leaving on 29 March. But if it isn’t leaving after all, there is little time left to prepare to vote on 23 May

Of course, the EU27 might agree an extension if the UK decided to hold a second referendum, as long as the vote was held before the new Parliament starts work on 2 July. But they would likely first want to know the question on the ballot paper.

Would the government ask if the voters approved of May’s Withdrawal Agreement? Would it instead ask if they wanted to stay in the EU? Or would it simply ask if they wanted to leave with No Deal?

Any of these questions are possible.  But deciding between them could be very divisive in itself.  And a referendum campaign could be even more divisive.  Plus, its outcome would be very uncertain if voters worried that democracy was being undermined by a refusal to accept the first result.

“A week is a long time in politics” as former premier Harold Wilson famously noted.  So it is possible that Sir Keir Starmer’s call yesterday for a new Labour approach might succeed.  Equally, MPs might decide to support the Nick Boles and/or the Dame Caroline Spelman/Jack Dromey motions next week.

But this would only be the start of a quite complex process, which might well end with a General Election being called – and all the while, the clock is ticking.

So after the government’s defeat on Tuesday, UK businesses and those that trade with the UK must urgently begin to plan on the basis that a No Deal Brexit on 29 March is now UK law. 

Please consider joining Ready for Brexit today (the advisory service I co-founded in June). It is effectively the one-stop shop requested by the CBI, and provides curated links to all the areas where businesses may need to prepare for Brexit.