Westminster Watch

As if Brexit wasn’t enough to contend with, Westminster has been mired in sexual harassment allegations. Mark Hatcher examines the brittle, back-foot state of affairs

Within days of losing the General Election in June, Jeremy Corbyn claimed he could be in No 10 by Christmas. Six months into the Parliament the possibility of another national poll in the near term cannot be discounted. The atmosphere at Westminster is febrile and the swamp is beginning to smell.

Whatever happened to strong and stable? Theresa May’s decision to call a snap election backfired spectacularly. A working majority of 17 over Labour evaporated overnight. Far from strengthening her hand in the Brexit negotiations, the outcome produced the exact opposite and the consequences are reverberating at home and abroad.

The government is weak and riven by factions. The Brexiteers’ cheerleaders, Michael Gove and Boris have buried the hatchet and set about running a hard-Brexit cell in Cabinet. The remain group in Cabinet is led by Philip Hammond whose Brexit-lite approach infuriates the Brexiteers. In the Commons a cross-party group who oppose a hard Brexit are cooperating on tactics.

Sensing the prospect of government defeats on the floor of the House in the course of the committee stage of the European Union (Withdrawal) Bill, the government’s announcement 24 hours before the beginning of that stage that the terms of the UK’s exit (including any transition deal and agreement on citizens’ rights) would be put to MPs in a separate EU Withdrawal and Implementation Bill could not have come a moment too soon for the Government Whips.

As if Brexit wasn’t enough to contend with, Westminster has been mired in allegations of sexual harassment which for a time seemed in danger of paralysing the political process. The PM’s closest political ally, Damian Green has been caught up in a scandal for allegedly inappropriate behaviour towards a female party activist. The allegations are being investigated by Sue Gray, a senior official responsible for propriety and ethics at the Cabinet Office. Apart from being the First Secretary of State, Green is also Minister for the Cabinet Office. Gray’s report will be to the Cabinet Secretary who will advise the PM.

Inappropriate behaviour towards women sealed the fate of Sir Michael Fallon (a safe pair of hands, as it were, otherwise known as the Minister for the Today programme) who resigned as Secretary of State for Defence. To lose two Cabinet ministers within six days looks like carelessness, but that was the impression which was being created when the Prime Minister was obliged to call time on the International Development Secretary. Priti Patel’s resignation was accepted for conducting a covert freelance aid policy in Israel without informing No 10 or, according to some accounts, the Foreign Office.

The normal disciplines of collective Cabinet responsibility do not seem to apply at the moment. But May is too weak to sack her critics and she is vulnerable. She is in office but not in power. As one insider put it, after only five months of the present Parliament, there is a ‘terrible weariness’ to everything the government does. Some see Brexit being enacted in the spirit of a damage limitation exercise where the UK will pay a large divorce settlement in order to retain some of the privileges we had before. The government is finding it hard to get on the front foot. It needs to recover its will to govern.

In this brittle context the government is pursuing the legislative programme announced in the Queen’s Speech, which outlined a raft of measures, heavily dominated by Brexit but by no means exclusively so. At the time of writing there are 15 government Bills passing through Parliament, which is lighter than for a normal legislative programme running to 12 months but allows more time for the weighty measures that will come before parliamentarians over a two-year parliamentary session.

The centrepiece is the European Union (Withdrawal) Bill. This creates a new category of domestic law for the UK: ‘retained EU law’. Retained EU law will consist of all the converted EU law and preserved EU-related domestic law which was in force on the day before the UK left the EU. It is undoubtedly the most significant constitutional Bill which has been introduced by the government since the Bill for the European Communities Act 1972 itself which, by Clause 1 of the Withdrawal Bill, is repealed. EU-retained law, ‘EU-derived domestic legislation’ and ‘direct EU legislation’ re-imagine familiar legal terminology in order to capture a body of EU law which will undergo significant change and operate under a new constitutional framework, with important consequences for the way in which the UK’s legal systems operate.

Several parliamentary committees have raised concerns about the clarity and status of retained EU law, and about how retained EU law is amended and interpreted. Converting EU law and preserving existing EU-related domestic legislation is necessary to provide legal continuity but it will also enable Parliament to amend, replace or repeal this body of law before exit day.

The government has said that retained EU law will be subject to a raft of changes through secondary legislation in order to ensure it operates effectively after exit day.

In this connection the recently published Interim Report of the Commons Procedure Committee on the Scrutiny of Delegated Legislation under the EU (Withdrawal) Bill (HC 386) is highly relevant because it addresses the concerns raised by the Bar, amongst others, about the level of parliamentary scrutiny. The task for the House is unique and unprecedented, and it requires a scrutiny mechanism to suit.

When the Withdrawal Bill was introduced to Parliament, it made no provision for amendment to the standard statutory procedures for control and approval of delegated legislation which have been in effect since 1947. The Procedure Committee sensibly proposed an enhanced scrutiny system (based on the European Scrutiny Committee model) to examine each instrument, whether for affirmative or negative resolution procedure, and for a determination to be made about whether it is of sufficient political and legal significance to require further consideration by the House. Significantly, external stakeholders would have an opportunity to make representations to the committee about the content of any instrument.

Looking further ahead, the government is gearing up for moving on from the first phase of the Brexit negotiations (covering the financial settlement, citizens’ rights and Ireland) to the second phase (the future UK-EU relationship) following some significant changes in the Cabinet committee structure.

In the last Parliament, May set up a small committee to oversee the negotiations with the EU, comprising the PM and First Secretary of State, the Brexit Secretary (David Davis) and Foreign Secretary (both prominent leavers) and the Home Secretary (Amber Rudd) and the Chancellor of the Exchequer (both prominent remainers). The committee has been expanded to include the International Trade Secretary (Liam Fox) and the Business Secretary (Greg Clark), as well as the Environment Secretary (Michael Gove) and the new Defence Secretary (Gavin Williamson), preserving the balance between remainers and leavers. It is strange that the Northern Ireland Secretary (James Brokenshire) has not been included.

There is also a new EU Exit and Trade (Domestic Preparedness, Legislation and Devolution) Sub-Committee, of which the Lord Chancellor and the Attorney General are members. There is also a new EU Exit and Trade (Strategy and Negotiations) Sub-Committee, to oversee the negotiations on the UK’s withdrawal from, and future relationship with, the EU. Nevertheless the Lord Chancellor is not a member.

Following the resignation of Patel, Victoria Atkins (a former criminal barrister, elected in 2015) joined the Home Office ministerial team to replace Sarah Newton as Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism. Previously a member of the Home Affairs Select Committee, Atkins is the Conservative Member for Louth and Horncastle in Lincolnshire. Her predecessor, Sir Peter Tapsell retired as Father of the House at the ripe old age of 85. Atkins may take some comfort from the fact that hers is a very safe seat. The government’s position is anything but safe. 

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.