The second phase of Brexit negotiations is under way with preparations for the EU Summit on 22 March when EU leaders are expected to sign off on a two-year transition period for the UK’s withdrawal from the EU in March 2019 and to agree a mandate for negotiating the post-transition relationship between the UK and the EU. The problem, as one former Brexit Minister George Bridges put it, is that the transition, or ‘implementation,’ period may not be a bridge to a clear destination but a gang plank into thin air.
To have reached this stage in the Art 50 process, triggered by the Prime Minister back in March 2017, the UK Civil Service has shown that Brexit can be done technically. But officials have had to sustain a remarkable degree of ambiguity, planning several versions of the future at once. The obstacles they face are essentially political. The Prime Minister says she wants a ‘deep and special partnership’ with the EU but seems unable or unwilling to articulate what that might mean beyond her Lancaster House speech over a year ago. There is no clear vision in the Tory party about the country they want Britain to be after we have left the EU.
While the government is struggling to govern, Labour is struggling to oppose. It continues to fudge its position to its own political advantage. Studied ambiguity will only go so far during the remainder of this year with calls for much greater clarity on free movement, the customs union and single market.
Preparing for Brexit is making huge demands on capacity in Whitehall and Westminster. Officials are trying to understand the ‘end state’ to get a clearer idea of the destination to take their work further. After years of staff cuts (in the case of the Ministry of Justice, by 26% since 2010), civil service numbers are starting to climb and much of this is directly attributable to Brexit. The increase in headcount represents a rise in Whitehall’s salary bill of at least £300m a year. That is before allowance is made for consultants, lawyers, new regulatory agencies and new customs and immigration staff.
At Westminster Brexit is the topic around which all political discussion continues to revolve and on which most ministerial time and parliamentary energy is being spent. The European Union (Withdrawal) Bill completed its passage in the Commons largely unscathed notwithstanding over 400 attempts at amendment, a foretaste of what is to come during the Bill’s committee stage over 10 days on the floor of the House of Lords. The Bill started life as an oxymoron; it was to be The Great Reform Bill until the House of Commons clerks objected to the use of ‘Great’. It repeals some EU law but transposes much of it back into UK legislation. Without it exit day would be an Armageddon of legal chaos.
The Withdrawal Bill is of exceptional constitutional importance. It is necessary but it is deeply flawed. That was the conclusion of 188 Peers (including ‘Hope, Judge and Pannick’) who contributed to the Second Reading debate which showed the Upper House at its best, bringing a cornucopia of experience together to review the government’s proposals. Over two days of informed and measured debate, former cabinet and permanent secretaries, ambassadors, judges, Lord Chancellors, EU Commissioners, MEPs, cabinet ministers, trade negotiators and lawyers eloquently registered their concerns to render the Bill, in the words of a former Speaker of the Commons, Betty Boothroyd, ‘copper-bottomed, iron-clad and storm proof’.
The Committee stage is providing an opportunity for detailed scrutiny of the government’s response to the concerns flagged on all sides in the second reading debates, supported by the recommendations in several recent Lords committee reports. The Lords Constitution Committee (whose members were described by the Daily Mail not as enemies of the people but as ‘the Peers trying to slam the breaks on Brexit’) have carefully considered the Bill and concluded it to be ‘constitutionally unacceptable’. Its ‘fundamental flaws’ risked undermining the legal certainty it sought to provide.
As currently drafted, instead of carrying over all current rights and protections the Bill specifically excludes the Charter of Fundamental Rights, contrary to the reasons advocated for its retention by the Joint Committee on Human Rights in its report Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis.
The Bill does not guarantee protections that cannot be weakened by secondary legislation. It allows Ministers to make laws by regulation if they deem it ‘appropriate’ to remedy any deficiency when bringing EU law into UK law. The Lords Delegated Legislation and Regulatory Reform Committee have expressed entirely understandable concern that the test of ‘appropriateness’ is subjective and have recommended that it should be replaced by an objective test of necessity. If the proposed new laws could not meet the ‘necessity’ test they should be introduced as primary legislation and subject to full parliamentary scrutiny.
The ‘excessively wide’ law-making powers given to Ministers rather than Parliament to legislate by statutory instrument would be regarded in any other Bill as unconstitutional. The committee have highlighted concern that ‘tax-like charges’ could be introduced by a Minister or public authorities without any parliamentary scrutiny (contrary to Art 4 of the Bill of Rights 1688).
The Bill leaves it to the judges to make key decisions that should be made by the legislature, flying in the face of warnings by the Lords Constitution Committee (and others) about the risks of politicising the judiciary and, in the opinion of recently retired Lord Chief Justice Lord Thomas, undermining the significant contribution of our legal system to the national prosperity.
Nor does the Bill respect the devolution settlements, mounting a power grab back to Westminster of non-reserved areas that reside in Cardiff, Edinburgh or Belfast.
The problem is that Parliament is being asked to legislate on the withdrawal before it knows the terms of the divorce settlement, the transition phase and the framework for a new, long-term partnership between the UK and the EU, all of which will alter – and in many cases override – much of what is currently in the Bill.
If taking back control by Parliament is to mean anything it must mean refraining from by-passing the essential scrutiny that Parliament is required to provide and ensuring that proper checks and balances are in place at a time of unprecedented legislative and constitutional change.
The government is going to face a rocky ride. Lords debates are not programmed in the same way as those in the Commons so there could be some long nights in the Lords where the government does not have a majority. Acting as a revising chamber, Peers have essential legislative and constitutional responsibilities to discharge. Defeats in committee will embolden Peers to table more amendments because there is a realistic prospect that Lords’ amendments to this measure will be agreed by the Commons. Expect some cross-party deals over the coming weeks between the majority of Labour parliamentarians, some Tories, the Lib Dems and nationalists.
The business managers hope they will get to Royal Assent of the EU (Withdrawal) Bill by the start of the summer recess so that the government can use the powers it hopes to obtain to bring forward the mass of secondary legislation to achieve the necessary transposition. But if the Prime Minister is defeated in the Lords and Commons on membership of a customs union beyond the transition, her hard Brexit strategy will be left in tatters and her remaining political authority fatally undermined.
Meanwhile the target date set by Michel Barnier for negotiators working towards the Withdrawal Agreement is October 2018, allowing time for ratification by the European Parliament and by the EU Council by a super-qualified majority after European Parliament consent. The UK Parliament will also need time to vote on the agreement – currently only provided by an amendment to the Withdrawal Bill – the ultimate deadline for exit being 29 March 2019. How likely that deadline looks like being achieved should become clearer by the middle of the year, assuming the UK’s ultimate destination becomes much clearer.
Mark Hatcher, Special Adviser to the Chair of the Bar