Last night the Prime Minister published 115 pages of turgid text he wants MPs to agree in three days. We’ve waded through as much of it as we can – and identified some horrors. But we won’t have caught them all.
In addition to the Withdrawal Agreement Bill (WAB), there are a host of other documents*. All in all, we are talking about well over a thousand pages. There’s no way that any human can have made sense of all this in the time available. But here’s our best effort.
Crash-out in a year?
MPs are rightly worried that Boris Johnson’s divorce deal doesn’t stop us crashing out of the EU’s single market and customs union. It just postpones the risk until the end of the “transition” in December of next year.
The government can, however, get extra time – provided it agrees terms with the EU no later than July 1. But what chance that the Prime Minister will ask for extra time, especially as the EU is likely to insist on a fee of perhaps £12bn-15bn for each year? The WAB doesn’t give much comfort. Clause 30 merely says the government can’t agree an extension unless MPs approve – which is not the same as saying it must agree if MPs insist.
Rory Stewart, one of the MPs Johnson expelled from the Tory Party, told the Today Programme he was trying to get the Prime Minister to toughen up this language. But any concession won’t be worth the paper it is written on. After all, if Johnson calls and wins an election, he will be able to repeal the language. Even if he doesn’t do that, the most MPs will be able to do is instruct him to start negotiations about extending the transition. Those won’t be easy because of the need to agree the fee. So Johnson can be bolshy in the negotiations and fail to get an extension. Unless he can then agree a free trade agreement (FTA) in record time, we’ll crash out.
Little say over future relationship
MPs want a say over that FTA – as well as deals on foreign affairs, science, justice and so forth. Johnson has provided a clause to cover that (Clause 31). But it’s worth precious little because paragraph (3) says the “objectives for the future relationship with the EU must be consistent with the political declaration” – and that sets out a very hard form of Brexit. So the idea that MPs could instruct the Prime Minister to negotiate a customs union with the EU, as outlined in today’s Telegraph, is phooey.
Blank cheque for Northern Ireland
Given that the problem of the Northern Ireland border has been central to the difficulties of negotiating the Withdrawal Agreement you would have thought that the detail would have been nailed down by now. It hasn’t been. Instead, Clause 22 enables ministers to make by regulation any provision relating to the Northern Ireland protocol that would normally be made by Act of Parliament – and so avoid proper parliamentary scrutiny.
The government needs that power because many of the decisions yet to be made will not be made by the UK alone but by the Joint Committee with the EU (see below). As Stephen Barclay’s gaffe exposed yesterday – when he had to correct himself and admit that paperwork would be required for sending goods from Great Britain to Northern Ireland – even the Brexit Secretary doesn’t understand how the protocol will work in practice.
Taking back control? Who are you kidding?
Clause 1 of the Bill saves the provisions of the European Communities Act for as long as the UK is in the transition period. So no taking back control of our laws on day one. What’s more, the European Court of Justice will still have jurisdiction in citizens’ rights cases for the next eight years, as part of the disputes procedure when EU law is at issue, for the EU parts of the Northern Ireland protocol and the EU parts of the financial settlement. Oh, and the European Commission will still be able to pursue enforcement action against the UK in respect of several aspects of the agreement.
Delegating to whom?
Throughout the Bill, there are clauses giving powers to ministers to make regulations to implement the UK’s withdrawal from the EU. Schedule 5 of the Bill is eight detailed, obscure pages on how these regulations will be approved by Parliament. Given how rushed this legislation is, the enormous powers given to ministers by the Bill, and the lack of effective oversight for the volume of new regulations that will be needed, this is another example of how Brexiter claims of the UK taking back control are a mirage.
What about the workers and the environment?
All those promises to Labour rebels about workers’ rights to get them to vote for Johnson’s bad deal are boiled down to one clause (34) and a schedule (5A) that don’t provide any guarantees on the retention of existing employment rights at all. Future governments will be able to repeal employment rights if Parliament agrees as long as they say they are doing so.
Meanwhile, all the government is required to do if the EU adopts any new rights is to publish a report. It’s no surprise that the TUC thinks these provisions won’t protect workers’ rights in the future when the reason why so many leading Brexiters want to leave the EU is to scrap rights they dismiss as “red tape”. And there is nothing in the Bill that even mentions environmental standards, let alone guarantees them.
Rule by Joint Committee
Many decisions – for example about the fee for extending the transition or the details of Northern Ireland’s customs arrangements – will be made by a new Joint Committee of EU and British officials. Both sides will have to agree. But since the UK needs the EU more than it needs us, they will have the whip hand.
In 2016 the Leave campaign promised us continuing frictionless trade with the EU, no changes in citizens’ rights and an end to the UK obeying EU law – all without paying a penny. This Bill doesn’t honour a single one of their promises.
- In addition to the Withdrawal Agreement Bill(115 pages), there’s the delegated powers memo (104 pages), explanatory notes (122 pages), the impact assessment (69 pages), the regulatory policy committee opinion on impact assessment (15 pages) and the ECHR memo (10 pages). This is on top of the revised Northern Ireland protocol (huge but not paginated) and the revised political declaration (27 pages). These need to be read in the context of the original Withdrawal Agreement (584 pages).
The headline was updated on December 3