11 October 2017

Much of the debate surrounding the European Union (Withdrawal) Bill resembled a dialogue of the deaf. Government ministers, who had previously talked up the Bill as a Great Repeal Bill of fundamental constitutional importance, now claim it is a mere technical fix to plug the void left in the UK statute book post-Brexit. Labour has proposed a similar Bill in its manifesto, yet condemned the Government’s Bill at Second Reading as “utterly pernicious”, “dangerous” and a “power grab.”

Yet within the storm of factionalism, it was possible to detect a measure of consensus. The Government seemed prepared to offer an olive branch to those who said that the Bill went too far – particularly in relation to controversial delegated powers. This is in no small part due to the fact that many of the dissenting voices came from the Government benches. Bob Neill, chair of the Justice Select Committee, stated that he would vote for the Bill at second reading, but that “we must also have a Bill which is fit for purpose…this Bill needs improvement.” Other Conservative critics included the former Attorney General Dominic Grieve, ex-MEP Vicky Ford, and former chair of the Public Accounts Committee Sir Edward Leigh.

Yet there were no Tory rebellions at Second Reading. Even Ken Clarke chose only to abstain. This is because concerned Government MPs are willing to let the real wrangling take place in the committee stage of the Bill. Significantly, a number of Labour MPs voted for the Bill at second reading, and others, such as Caroline Flint, abstained. 290 Amendments to the Bill have been tabled at time of writing – these will be considered during 64 hours of debate. And because this is a Constitutional Bill, the committee stages will take place on the floor of the House of Commons, rather than in a dark room off a dusty corridor.

There will be several flashpoints at the committee stage. The most contentious will be the issues surrounding so-called “Henry VIII” powers, a parliamentary vote on any withdrawal agreement, the role of the devolved administrations, and the question of retained rights. There must be compromise. This Bill’s passage rests on a delicate balancing act – namely that those who want Brexit to be a moment of deregulation must not use the Bill as a vehicle for scrapping laws and rules, whilst those who wish to keep the status quo ante (or indeed to gold-plate existing regulations) must not fatally tie the Government’s hands. If either side gets the sense that the other is using the Bill for its own design then things risk falling apart.

“Henry VIII” powers

There is cross-party concern regarding the Bill’s delegated powers. These are powers which the Bill proposes to give ministers to allow them to tidy up any legal issues which result from Brexit. Clause 7 gives examples of situations where powers would be given to ministers to remedy deficiencies in retained EU law, but it is non-exhaustive – so it does not limit the powers of ministers to only those examples. The current list provided by the Government includes such examples of ‘deficiencies’ as:

  • EU references that are no longer appropriate
  • Provisions that have no practical application after the UK has left the EU
  • Provisions on functions that are currently being carried out in the EU on the UK’s behalf, for example by an EU agency
  • Provisions on reciprocal arrangements or rights between the UK and other EU member states that are no longer in place or are no longer appropriate

A group of 15 Conservative MPs led by Dominic Grieve (and including normally loyal Members such as Jeremy Lefroy, Tom Tugendhat and John Penrose), propose to make the list exhaustive – i.e. to limit the scope of powers given to ministers. The nucleus of their concern is that delegating powers to ministers to amend the law allows the Executive to legislate without reference to Parliament. Those concerns are legitimate, but others point out that in passing the 1972 European Communities Act itself Parliament had accepted a subordinate role for itself – and that these powers are simply a means of correcting that.

Making the list of delegated powers exhaustive would severely restrict the Government’s powers, and make ministers less able to address shortcomings and deficiencies which may emerge as a result of Brexit. A better remedy could be that suggested by the House of Lords Committee on Delegated Legislation – to allow the powers to be used only when “necessary”, rather than when a Minister deems it “appropriate”, which is the current wording in the Bill.

Several of the powers granted under the Bill have the same potency as Acts of Parliament, something that has been broadly criticised. Clause 9, which gives Ministers the power to implement a withdrawal agreement, even contains a very broad provision which allows Ministers to repeal the Act itself – the Committee on Delegated Legislation said that this is “the widest Henry VIII power”. Labour wishes to remove a similar power in Clause 7 to modify and amend the Act itself via delegated powers.

A group of 15 Conservative MPs put their names to another set of amendments proposing an enhanced scrutiny procedure for secondary legislation created by powers included in the Bill.  The structure of the procedure is taken from a suggested model put forward by the House of Lords Constitutional Committee before the Bill was published. This proposal was not then adopted by the Government but given the level of support it seems unlikely the Government will choose to ignore it again.

The Committee’s suggested triage system is that:

  1. Ministers sign a declaration in the Explanatory Memorandum of each Statutory Instrument (SI) stating that the instrument does no more than necessary in amending EU law
  2. The Memorandum to the SI sets out clearly what the EU law in question did before Brexit, what the effect of the amendments by SI will have on the law and why those amendments are necessary
  3. The Government makes a recommendation for each SI as to the appropriate level of scrutiny it should undergo.
  4. Parliamentary committee(s) consider the recommendation, and decide upon the appropriate level of scrutiny for each SI – this committee could be by both Houses or a Joint Committee
  5. Where the relevant committee(s) determines that an SI modifies EU law in a manner that determines matters of significant policy interest or principle, it should undergo a strengthened scrutiny procedure (not defined by the Committee)

Quotes:

“Some of those temporary powers are quite a bit bigger and broader than they need to be… If Brexit is supposed to take back control of our laws, it’s pretty hard to argue that the small number of substantive changes should simply be waved through parliament without debate” – John Penrose (Con)

“It seems to me that clauses 7 and 9 go beyond what is acceptable or necessary” – Bob Neill (Con)

“As this Bill passes through the House, we can look at better ways to scrutinise secondary legislation in particular.…The Government would be well advised to accept reasonable amendments that improve the situation” – Peter Bone (Con)

“The Bill in its current form, particularly clause 7, is an unacceptable attempt by the Government to demean the role of Parliament” – Dr. Sarah Wollaston (Con)

Likely outcome: The Government will give ground. Checks on ‘Henry VIII’ powers seem inevitable. At present, the powers are drafted unnecessarily widely, so the Government can afford to curtail them. It is doubtful whether it will accept creating an exhaustive list of the uses to which these powers can be put, as suggested by Mr Grieve, but creating a triage system seems likely, despite its earlier exclusion. The 15 Conservative signatories to an amendment suggesting such a system are enough to seriously threaten the Government’s Commons majority. Justice Minister Dominic Raab, in a recent panel discussion with Open Europe at Conservative Party Conference, conceded that “there is a genuine, legitimate issue about the extent and scope of parliamentary scrutiny, we will listen and engage and get that process right… There is a sensible debate to be had about triaging, the right legislation to go through the right process.”

A vote on the withdrawal agreement

There was some indignation in the Commons at the Bill’s proposal to allow ministers, independently of Parliament, to put in place any departure deal the UK may agree with the EU. The Government has previously promised a parliamentary vote on any agreement. David Jones, the Minister of State for Exiting the European Union, told Parliament in February that:

“We intend that the vote will cover not only the withdrawal arrangements but also the future relationship with the European Union… I can confirm that the Government will bring forward a motion on the final agreement, to be approved by both Houses of Parliament before it is concluded.”

Despite this, Clause 9 of the Bill allows ministers to implement the withdrawal agreement without parliamentary consent. This power expires on exit day – which is such day as the Minister chooses to appoint. This means that the Minister can choose when this power expires, which is controversial. (Interestingly, there can be multiple exit days for different provisions of the Bill, if desired – though Grieve and others have filed an amendment to prevent this).

Presumably the power is intended to be used throughout the Article 50 period to implement agreed parts of the withdrawal process. However, if a vote in Parliament were required before these powers could be exercised, then the powers could only be used between any such vote and “exit day”. Given that any vote will likely be in the 11th hour of negotiations before March 2019, this seriously limits the powers – the agreement would have to be implemented within a potentially very brief period. This is why the Bill provides powers for ministers to set ‘exit day’ or multiple exit days. The Prime Minister has stated that during any transition/implementation period, there may well need to be different implementation dates for different issues. Therefore, the Government will necessarily need some flexibility in how it implements the withdrawal agreement, prior to March 2019 and afterwards.

Labour has submitted an amendment proposing that Clause 9 is removed, and a group of 9 Conservative MPs have proposed an alteration to require the final deal with the EU to be approved by statute before the powers can be used. It should be noted that requiring a Bill for the final deal with the EU goes beyond the Government’s promise to hold a vote on the deal.

Quotes

 “We should be legislating separately for the withdrawal agreement. We should have a separate Bill… we should not be doing it now, when we have no clue what the withdrawal agreement will be, when we have not had a vote to endorse the Government’s negotiating strategy… and when there is not even a statutory commitment to a vote on the withdrawal agreement’ – Yvette Cooper (Lab)

“The Bill does not state whether any withdrawal agreement will need the consent of both Houses before the powers can be used. The Government has said that we will get a vote on a final deal, but that does not appear to be within the Bill’ – Chuka Umunna (Lab)

Likely outcome: The Government should concede that a vote will be given before the power to implement the withdrawal agreement is used. It has already spoken of its commitment to put the matter to a vote, and it would be a vote of confidence in the House to put it in writing. This concession has basically already been granted, but giving it the authority of an Act of Parliament could be a cheap way of buying off rebels. Nonetheless it is unclear what the effect of the Government losing a vote on any withdrawal agreement would be. Under Article 50, the UK will leave the EU at the end of the two year timetable irrespective of the passage of any vote, or indeed Bill, on the withdrawal agreement.

The devolved administrations

Clause 11 of the Bill has provoked the ire of the devolved administrations. It amends the Scotland Act 1998 in a way which prevents the Scottish Parliament amending retained EU law, where it is outside the competence of Holyrood – in effect reserving for Westminster powers that will be returned from the EU to Parliament. Talk by the SNP of a “naked power grab” is hyperbolic: the devolved administrations are not losing any powers they already had, and the Government has committed to discussing which of the returned powers can be handed to the administrations.

Parties from the devolved administrations have proposed 38 amendments to the Bill which would:

  • Ensure devolved policy areas come back to the Welsh Assembly and Scottish Parliament after Brexit
  • Prevent UK ministers unilaterally changing the Government of Wales Act and the Scotland Act
  • Require the agreement of the Welsh Government on necessary changes to current EU law in devolved areas after Brexit.
  • Ensure additional restrictions are not placed on devolved ministers compared with UK government ministers.

Labour has also opposed the reservation of powers in Westminster, tabling an amendment which would remove the Bill’s proposed restrictions on the ability of all of the devolved administrations to legislate on devolved matters.

Quotes

“We were told that these powers would come back to the Scottish Parliament without touching the sides, so where are the full powers over fishing, agriculture, energy and education?” – Stephen Gethins (SNP)

“The Bill rides roughshod over the devolution settlements” – Stuart C. McDonald (SNP)

 “The Bill threatens the constitutional settlement between Wales and England” – Hywel Williams (Plaid Cymru)

“We should be generous with our Scottish friends. If they have a genuine desire to ensure that powers from the EU do not come to the Westminster Parliament but go to the Scottish Parliament, we should be generous towards them.” – Sir Edward Leigh (Con)

Likely outcome: With little prospect of a rebellion on its own benches, the Government does not need to give ground here. However, though Westminster does not require the consent of Holyrood or the National Assembly for Wales to pass the Bill as a matter of law (this was clarified by the Supreme Court in Miller), bypassing the devolved administrations and the Sewel Convention (whereby the UK Parliament must obtain the consent of the Scottish Parliament where it legislates on a matter within Holyrood’s competence) would have significant political consequences, especially given the Government’s reliance on the DUP.

The Charter of Fundamental Rights and retained EU law

The Government has said that the Repeal Bill is designed to protect rights. Labour has accused the Government of seeking to restrict rights via the mechanisms provided in the Bill. The Amendments reflect this concern – Jeremy Corbyn tabled an alteration seeking to insert a clause into the Bill preventing the Government from using delegated powers to alter workplace protections, equality provisions, health and safety regulations, or fundamental rights (as defined in the EU Charter of Fundamental Rights).

The Charter of Fundamental Rights would be scrapped in UK law if the Bill is enacted. But Labour MPs, and some Tories, are fighting to preserve it. Mr Grieve (supported by 9 other Tories) has submitted an amendment proposing to allow the Charter to continue to apply domestically in the interpretation and application of retained EU law. Labour has proposed an almost identical amendment.

The Charter poses a difficulty for the Government. It is (even in its name) an enduring symbol of transnational European law-making, and represents much that leading Brexiteers dislike about the EU. The Government’s position (and that of previous Labour Governments) is that the Charter did not create any new rights and that it only applies to a member state when it is acting within the scope of EU law.

The Charter’s provisions have, however, been interpreted by the courts to broaden existing rights (see the case of Digital Rights Ireland and David Davis’s challenge to then Home Secretary Theresa May in 2015). Dr Tobias Lock has commented that “the loss of the Charter is likely to lead to tangible losses of rights in three areas: data protection law, the right to a fair trial… and migration law.” Professor Mark Elliott, however, suggests that:

“Retaining the Charter would be far from straightforward… it presently operates only in areas to which EU law applies – a restriction that would make no sense post withdrawal. Yet if the Charter were to be given global effect within the domestic legal system, that would create significant complications – not least in its relationship with the Human Rights Act 1998.”

The government claims that fundamental rights or principles that form part of EU law independently of the Charter are unaffected by the non-incorporation of the Charter itself and can therefore form part of domestic law. In conversation with Open Europe, Dominic Raab noted that the UK already has a complex and overlapping human rights landscape. This stretches from the Human Rights Act, across a host of other laws from Magna Carta to the Equality Act.

There is also a specific concern about the lack of a right of action in the Bill to challenge retained law on the grounds that it is in breach of general principles of EU law (Schedule 1, paragraph 3). The Bill’s exclusion of such a right means that EU law that is transposed into UK law will no longer be able to be challenged if it potentially runs against these general principles (for example, retained legislation that contradicts EU principles on environmental protection will not be able to be challenged under those principles). This is something that Dominic Grieve has seized upon, and there is an amendment proposing that the Bill include a new right to sue on these grounds (backed by 8 other Tory MPs).

Quotes:

“The Bill exempts the charter of fundamental rights, but the tech sector points out that article 8 of the charter is crucial because it underpins data protection laws which enable the free flow of data” – Vicky Ford (Con)

“[David Davis] must agree that the right of the individual to challenge on the basis of the principle of EU law – that law that will be imported into our law by the Bill – will no longer be possible… That seems to me a marked diminution in the rights of the individual and of corporate entities” – Dominic Grieve (Con)

“The charter applies only to member states when acting within the scope of EU law… It is not, and never was, the source of [rights found under EU law that will be brought into UK law]. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations… for example, the ECHR…The absence of the charter will not affect the substantive rights available in the UK” – David Davis

 “Reading the mind of [David Davis], I think he… would insist that the general principles of EU law being preserved would replace the charter. However, if they are not justiciable because we do not found a cause of action in our courts, the ability to assert those rights would evaporate” – Dominic Grieve

Likely outcome: The Charter in its present form is designed for use within EU jurisdiction only. Despite the assurances of successive governments that the Charter would not create new rights, UK courts have increasingly relied upon it to do just that. Arguably, the Charter has led to a great deal of judicial law making, and has risked turning judges into political targets.

The Government could compromise, and commit to incorporate rights that have developed from the Charter since its genesis, as well as granting Mr Grieve’s request for a right to sue. Yet ministers will be rightly reluctant to further complicate the domestic human rights landscape, not least given the commitment of previous Conservative Governments to scrapping the Human Rights Act and replacing it with a British Bill of Rights. Retaining the Charter would be both politically and legally difficult. The challenge for the Government will be to assure Parliament that no significant rights are being lost in abandoning it.

This Bill is too big to fail

The UK urgently requires a legislative mechanism for retaining EU law to avoid a legal vacuum once it leaves the EU. The bill is designed to fulfil this purpose and, despite their objections to this bill, Labour’s 2017 manifesto included a commitment to pass a similar bill. There is a clear majority of MPs in the Commons who understand the necessity of the Bill and will vote through measures to that end. In this regard, the Bill is too big to fail.

The sheer necessity of the Bill is also the Government’s greatest weakness. It simply cannot afford a rebellion scuppering the Bill – and must therefore take steps to placate any significant group of dissidents.  This it will do where it faces considerable opposition on its own benches. Yet it is unlikely that the Government will give any ground to those advocating provisions for remaining in the Single Market or the Customs Union.

The timetable for passing this Bill is extremely tight. If the Bill is not on the statute book in good time, the prospect of a disorderly Brexit will loom ever larger. The Government must pass thousands of statutory instruments to create the legal landscape to allow Brexit to proceed smoothly. If those SIs are to be triaged and scrutinised further then that will further complicate matters. It is in the national interest that the Bill becomes law at the earliest opportunity.

Overall there are a host of problems with the Bill but it is something of a necessary evil. Parliament should try to avoid giving ministers delegated powers and using Henry VIII clauses but this may be an “I wouldn’t have started from here” situation where some flexibility is required. Given the strictures of the Article 50 process and the two year timetable which it creates, it was always going to be necessary for any Government to create a legal mechanism for rapidly transposing EU laws into domestic law. There’s a huge volume of changes required so the opportunity for serious scrutiny may be limited.

The Bill is very likely to pass the Commons. It may include a few more fetters on delegated powers, and the Government may need to allow greater parliamentary scrutiny of the process, but the need for an Act facilitating Brexit is paramount. However, the Bill will face new challenges in the Lords. Expect significant rebellions there, difficult votes and a lengthy ping-pong between both houses.