Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
Yesterday, the Commons was supposed to have started its scrutiny of the European Union (Withdrawal) Bill. I have previously said the Bill is, in reality, an uncontroversial and mundane Bill. Unfortunately, my analysis has not been shared by a phalanx of Labour and ‘rebel’ Conservative MPs who have to date tabled over 300 amendments, over 138 pages.
These cover a range of subjects from the EU’s role in “animal sentience” (signed by 15 MPs), to an official Labour amendment delaying Brexit for an unknown period, and everything in between. Some are legally illiterate, some inedible, and others just plain pointless – they are all there, pages of ugly graffito spread over pages and pages of Hansard.
In the face of this wall of obfuscation, the Government has temporally put back the eight days of Commons debate allocated to the Bill. This is sensible, if only to give them time to read the missives. So is there any danger to the Bill and Brexit?
This Bill is necessary to Brexit. But it is not necessary to ensure Brexit happens; it will happen regardless, but the Bill is necessary to ensure Brexit happens in an orderly manner. It will place the 20,000 EU laws into UK domestic law ensuring legal certainty. If we left without the Bill it would be a genuine hard Brexit – potentially the greatest repeal of legislation in history! Parliament voted for Article 50 – it would be odd if it denied the Government the ability to ensure regulatory certainty.
It is therefore a necessary Bill, but that does not mean Parliament will pass a workable Bill. Parliamentary arithmetic being what it is, the Bill is becoming a great Christmas tree on which to hang a wide range of issues. This is indulgent; Parliament has limited time before the UK leaves the EU on 29th March 2019, the Commons and Lords need to ensure a workable Bill is passed.
Here are some of the issues that may come up.
Firstly, there are amendments that directly attack the Bill or the Prime Minister’s ability to negotiate a deal with the EU. These range from changing the “exit date” for the repeal of the European Communities Act to after any ‘implementation period’, to (NC54) forcing the Prime Minister to agree a transition – allowing the EU the ability to name its price.
Secondly, there are those that are poorly drafted or make little legal sense. Among these are a series of amendments, including Amendment 8, backed by Dominic Grieve, the former Attorney-General, that would seek to place the EU’s Charter of Fundamental Rights into UK law. Placing the Charter into UK law would create serious legal uncertainty, duplicate and conflict with the Human Rights Act, and give an unclear duty on or ability to the UK Courts to strike out Acts of Parliament and delegated legislation. The Charter itself has an odd history, being the subject to Tony Blair’s non “opt out”, which turned out to be nothing of the sort. Quite how a UK Court could in future rule on a transposed EU law via a transposed Charter is unclear – the divide between UK and EU-derived laws is already unclear. But no matter that the UK never wanted the Charter in any guise – uncertainty in Human Rights law will only be good for Human Rights lawyers.
Other amendments in this category backed by Conservative rebels include those that would allow people to continue to sue the Government for damages for failing to abide by EU obligations even after the UK has left the EU. These damages (and others such as under Francovich) again make no legal sense, create uncertainty, and will be of little utility to anyone outside of the legal profession.
Lastly, there are those that are potentially well-intentioned but misunderstand or are oblivious to the practicalities of Brexit. These revolve around the Henry VIII powers. The Government has given itself the power to amend EU laws to correct deficiencies, allowing the most important ones to go to an affirmative vote. There will be no shortage of these votes – literally hundreds. While expanding scrutiny is no bad thing, proponents of more votes need to reconcile that desire with the limited time to get these laws on the statute book.
Inconveniencing Parliament through extra votes is one thing, but creating fatal delays to the Bill are another danger that can some are wilfully pursuing. The House of Lords will no doubt wish to discuss all these amendments in detail, they will no doubt wish to vote on numerous statutory instruments, and they may send amendments back to the Commons. If this process goes on too long, Parliament will have voted for Brexit but also prevented the Government from getting a Bill on the statue books that would help ensure its success.
There are many reasons to improve how Parliament works and ensure proper scrutiny of legislation. Brexit was in part driven by a desire for laws to be made in Westminster rather than imposed via delegated legislation via the 1972 European Communities Act with little real scrutiny. Improving the scrutiny of UK delegated legislation has been a subject of discussion by think tanks such as the Hansard Society a long time before Brexit, and it is ironic that it has suddenly gained more adherents from formerly silent former Remainers. There is a time and a place for discussion and scrutiny of Brexit. Delaying and mangling this Bill is not it.