On 3 January 2019, the Financial Markets Law Committee (FMLC) published a letter to HM Treasury with regards the Financial Services (Implementation of Legislation) Bill (the Bill). The Bill provides HM Treasury the power (in a no deal scenario) to implement and make changes to ‘in flight’ EU legislation, that is instruments that:

  1. have been adopted by the EU, but do not yet apply so cannot be captured by the Withdrawal Act (an exhaustive list is provided in Clause 1 of the Bill); or
  2. are currently in negotiation and may be adopted within two years after exit day (listed in the Schedule to the Bill).

In their letter, the FMLC identifies a number of legal uncertainties that may arise within clause 1 of the Bill. These uncertainties are centred around ‘in flight’ technical standards; and ‘in flight’ legislation outside the purview of HM Treasury.