Westminster Watch

Mark Hatcher examines the issues ahead, as Theresa et al teeter towards Brexit on the Westminster tightrope without the critical parliamentary safety net

Parliamentarians returning to Westminster for the new term beginning on 9 October have had a busier summer than usual as Brexit continues to dominate the legislative and policy agenda. The publication of a flurry of government position papers (including on cross-border judicial cooperation on issues such as divorce and bankruptcy, on the jurisdiction of the CJEU and on data protection) added to MPs’ recess reading together with the EU (Withdrawal) Bill which was published just before MPs set off to recharge their batteries and prepare for the long haul ahead this session.

A start on more serious negotiations in Brussels has been made but it is only a start. The EU’s approach to sequencing discussions has been to begin with Northern Ireland, tackle financial obligations and approach citizens’ rights and then, when ‘sufficient progress’ has been made, to consider the UK’s future relations with the EU. The EU formally welcomed the greater clarity provided by the position papers but criticised the UK’s perseverance in setting out its stall rather than first settling its account with the EU.

The date set by the EU’s chief negotiator, Michel Barnier to conclude the Art 50 negotiations is 30 September 2018. Theresa May’s provisional deadline for concluding the Brexit negotiations is March 2019. There is an awfully long way to go. The 40 full-time equivalent staff who are providing dedicated legal services to the Department for Exiting the EU (DExEU) under a fixed fee agreement with the Government Legal Department of £3.7m have their work cut out, to say nothing of the challenges facing officials working on policy matters.

The government, propped up by a DUP grouping of Protestant hardliners, continues to tread a tightrope but the defeat of Labour’s motion to deny the Withdrawal Bill a second reading in the Commons in the pre-conference period was never seriously in doubt. Labour accepts that the Brexit process requires legislation to bring EU law onto the UK statute book but they see the Bill as fundamentally flawed and failing to protect and reassert the principle of parliamentary sovereignty. Their concern remains that the powers of the Bill are too widely drawn and that sensible transition arrangements and incorporation of the Charter on Fundamental Rights should not have been ruled out by this measure.

The government’s case at the end of two full days of debate in which 107 MPs spoke was put by the Secretary of State for Justice. David Lidington is not a Brexit Minister and he has long been seen by Eurosceptics as having gone native while Minister for Europe at the Foreign Office. But as a former Leader of the House of Commons, Lidington knows the procedures of the House backwards and in the course of six years at FCO leading on EU matters is steeped in the detail of what is involved in unravelling a 45-year relationship. It was a skilful performance which hinted at possible concessions such as a triage process to assess which regulations would require a parliamentary vote. The government won its majority of 36 thanks to seven Labour MPs defying Jeremy Corbyn and the Tory Remainers like Anna Soubry keeping their powder dry. It seemed odd that no Minister from DExEU was considered up to the task of securing the government’s position.

The Withdrawal Bill awaits its line-by-line scrutiny in Committee. Theresa May has a working majority of 13 with the DUP’s support and a bigger majority in practice on Brexit issues but the outlook looks anything but settled, especially now that Keir Starmer for Labour has promised no more ‘constructive ambiguity’ and the party has committed to call for a transnational deal during which the UK would remain in the Customs Union and the Single Market, a clear point of difference from the Tories who have pledged that the UK will leave both on day one of exit from the EU.

Over the coming weeks the committee stage will deal with Labour amendments to deny Ministers Henry VIII clauses, give Parliament a vote on implementing the withdrawal agreement and give repatriated powers to devolved assemblies. Amendments backed by the Tories (including Ken Clarke, Dominic Grieve and Anna Soubry, the latter failing in her bid to get elected to the Commons Brexit select committee) will include powers to transpose the Charter on Fundamental Rights into UK law, limiting Ministers’ powers to amend EU law and provide a requirement for a final deal with the EU to be approved by Parliament.

The Whips’ task of managing day-to-day control of the Commons has been made marginally easier because the government has managed to ensure it has a majority on all Public Bill Committees, the Opposition having tried unsuccessfully to argue that by convention the composition of these committees should reflect the size of the parties in the Commons. The government’s response to Labour’s charge that the committee system was being rigged to guarantee the Tories a majority they were denied at the ballot box is that this is just good business management, to avoid unwarranted delays to its legislation. Ministers insist that a government should be able to avoid guerrilla warfare on Bill committees and point to the fact that a Labour government forced a vote through to guarantee itself a majority on Public Bill committees in the 1970s even though Labour had lost its overall majority. But the 1976-79 Labour government had started with a majority which Theresa May lacks.

The government’s White Paper on Brexit said that Parliament had a critical role to play in the process of leaving the EU but at times it feels that the government, and the Prime Minister in particular, do not believe that Parliament should have a critical role. The EU referendum held in June 2016 took place over 15 months before Parliament has begun properly to scrutinise what the government is doing. Come October six months will have elapsed since the General Election before the Commons has had any functioning select committees. By July chairs of 17 committees were selected and Labour had nominated members for the committees, but it was only in the first week in September that the Tories had a vote on their committee members. As a result the Commons Exiting the EU select committee has only just begun to launch its inquiry into the Withdrawal Bill and to begin an inquiry into the progress of the UK’s negotiations on withdrawal.

Is this really giving control back to Parliament? To suggest that challenging the government and advancing proposals for amendment of legislation goes against the will of the people is surely a fundamental misunderstanding of parliamentary democracy. The Lords Constitution Committee was rightly indignant in its recent interim report about the Withdrawal Bill’s ‘extraordinary transfer’ of legal powers from Parliament to the government with no additional oversight and because the recommendations in their earlier report on limiting Ministers’ powers to make changes to adapt EU law had been completely ignored by the government.

No 10 is determined to ensure that Brexit does not dominate everything at Westminster so there will be a renewed focus this autumn on domestic reforms including a Courts Bill. The Chief Whip has started emailing colleagues with a weekly roundup on what the government has been doing. The message that Ministers have been getting from the Chief of Staff, Gavin Barwell and the PM’s Director of Communications, Robbie Gibb is that if departments want to make policy announcements and they can be made to work, they will be fitted into No 10’s grid. Watch this space.

For those Westminster Watchers who have tired of the apparently relentless focus on Brexit, it may be of some interest to learn that last year almost half of the wine bought by the government wine cellar, and more than half of the wine it consumed, came from England. Presenting the Government’s Hospitality Wine Cellar Annual Report to Parliament, the Foreign Office Minister of State, Sir Alan Duncan, told MPs that the amount of wine consumed fell by 12% over the previous year as there were fewer government events, ‘particularly during the EU referendum’.


Author details: 
Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.