Expert View

A flawed bill that must be amended

by David Hannay | 16.07.2017

The 62 pages of the European Union (Withdrawal) Bill – the Orwellian title of ” Great Repeal Bill ” having now been withdrawn from circulation – together with 66 pages of explanatory notes have now landed with a sickening thud in Parliament’s in-tray. You can expect it to remain there for several months, being scrutinised and perhaps amended by Commons and Lords. It needs both.

If you listen to the government, this is just a little tidying-up operation to ensure that the day we leave the EU the transition runs smoothly and there are no gaps in the statute book. Indeed at times they make it sound as if the bill’s sub-title ought to be the Prince of Lampedusa’s wonderfully cynical description of revolution in his novel “The Leopard” – “everything must change so that everything may stay the same”. In reality, it is not quite like that. It represents a fundamental step and it has plenty of defects.

Part of the problem is that the government has so clearly put the cart before several horses. The normal constitutional practice on a major issue like this is for the government to get parliamentary approval to negotiate (in the present case this was done in March of this year). The government then negotiates a deal and brings it back to parliament. And then the two chambers either approve or reject it and enact the necessary changes to our domestic law to give effect to the terms of the deal. Here we are only a few weeks into the negotiations, without any clue as to their outcome, and parliament is being asked to give the government a blank cheque by completing the final stage.

The Bill, by definition, takes no account of the outcome of the negotiations. Moreover the government has compounded that problem by rejecting in March any amendment to the Article 50 Act which would have made statutory provision for a meaningful process of approval of a deal or of no deal by parliament. The Withdrawal Bill makes no provision for that either. That is a large lacuna which will need to be addressed.

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Then there are the sweeping powers the government has proposed it should be given, to act with minimal parliamentary oversight or control of the process – popularly known as “Henry VIII clauses”, after the way in which that Tudor monarch legislated by proclamation, without parliamentary approval. These will be changes needed to take account of the outcome of the negotiations, those needed for the transformation of the 34 or so regulatory agencies which currently operate at EU level, and major issues of environmental and labour market law. The procedure would also enable the government to vary the Bill’s ban on the jurisdiction of the European Court of Justice if, as now seems inevitable, that body retains a role in any dispute settlement procedures which are required by the terms of the withdrawal agreement or by those of the new partnership with the EU.

Parliament could well consider it excessive to give its agreement to this massive range of powers, in which case there will need to be more primary legislation in addition to the seven other bills already envisaged. Or there will need to be some new process for handling statutory instruments which gives both Houses the right to amend them, which currently they do not have.

Devolution will be another bone of contention. The Bill proposes that all powers repatriated from Brussels should return to Westminster even when these concern matters which fall within the responsibilities of the devolved parliament or assemblies. The government admits that it will need legislative assent from these devolved institutions. So it cannot be surprised if its determination to decide itself which powers currently exercised by Brussels should be passed on to Scotland, Wales and Northern Ireland, and which retained by Westminster, has already provoked a furore.

Clearly the UK needs to be ready for what happens in March 2019. But the government’s choice of the means of doing so is deeply flawed. The parliamentary fracas which will now ensue may be confusing, but it is necessary. The Brexiters will allege that every amendment to the Bill is designed to sabotage the entire process of leaving. It will not be so. It will be designed to give parliament, and not just the government, control over what is being repatriated.

Edited by Quentin Peel