The Withdrawal Agreement Bill published last night is 110 pages long, plus index, and it has to be pushed through in days. It is much shorter than its length though. The Bill was necessitated by the manoeuvrings of Sir Oliver Letwin, who has indicated that he will support it; which make you wonder why he did not just support the approval motion on Saturday.
The reasons (if they can be called that) are suggested by conspiracy theories that spread around the corridors of Westminster: that the Spartans would see the agreement approved to get rid of the Surrender Act, only to turn and block its implementation in order to achieve a no-deal Brexit; but even the most virulent of them does want a deal. The atmosphere of mistrust and misunderstanding has raised a toxic cloud which drives those within on both sides to lose all reason, or believe their opponents to be mad, which is a form of madness itself.
As we know though, it is not really about Europe.
We are where we are though and it is up to the Bill to implement Exit.
It is not short. This Bill has been in preparation for months and been swiftly updated for the changes in the new, Boris withdrawal agreement. It is hard to see why it has to be so long, but the other statutory provisions it riffs off are long and tangled so it has to be so itself, apparently.
It might have been a few lines: ‘The Government can do anything to implement the agreement, and shall’, but MPs should be grateful that the powers are more circumscribed to the purpose.
The Bill provisions
Clause 1 adds to the Withdrawal Act a ‘bridge’ to carry over existing European legislation into the transition period, with a few ‘to be read as if’ provisions, and Clause 2 does the same for domestic regulations made under the repealed European Communities Act 1972, then Clause 3 is the usual bundle of Henry VIII powers for tidying-up and Clause 4 extends this in a tortuous and hard-to-follow way to powers of the devolved authorities – it is hard to follow because it is talking in general terms about powers and enactments not yet identified let alone classified. It seems to make sense, somewhere. There could be head-scratching in the implementation. Section 5 seems to go over old ground covered by Clauses 1 and 2, but there may be a technical difference.
There then follow provisions (Clause 6) on the “EEA EFTA
separation agreement”, which has barely been mentioned before but was agreed in 2018; it may not excite members
much, although the rights of a Liechtensteiner may be as important to that person
as the rights of a Frenchman are. There is no need to dwell on it.
Clauses 7 – 11 deal with rule-making powers in connection with continuing
rights of residence for EU and EFTA citizens and the limitations thereof: much
scope for virtue-signalling here but in fact the provisions have nothing unexpected
nor anything those currently in opposition would not enact themselves were the
positions reversed. Expect this to be a battleground for rhetoric if not
substance.
There follow more technical rule-making powers on other areas in
the Withdrawal Agreement, such as recognition of professional qualifications
(urged by Remainers and Leavers alike, but expect the two sides to tear into
each other about the importance of this even if they are in violent agreement),
non-discrimination etc. There is even a quango to be established, ‘The Independent
Monitoring Authority for the Citizens’ Rights Agreements’ – nothing like a
snappy name) to give employment to any footloose Blairites still about.
Then come more random rule-making powers, again (this is a most untidy
Bill). Jolyon Maugham will have fun with
all the judicial reviews to follow.
Financial provisions are in Clause 20: though one of the more
contentious elements of the Withdrawal Agreement, the Clause is plain and
workmanlike, following the template of all supply bills.
The Protocol: the
provisions for the Ulster Protocol begin at Clause 21. It is the dark cloud
over the Bill. The Henry VIII provision
is remarkable, saying that ‘Regulations under subsection (1) may make any
provision that could be made by an Act of Parliament (including modifying
this Act)’. The DUP will not be happy at all. The Protocol is one thing, and supported by
other Unionist parties, but the provisions spelled out in black and white here
are deeply troubling. Whether it is gold-plating, or the hidden necessity
behind the jolly words of the Protocol others must consider. That is just
Clause 21; the rest is less troublesome.
Clause 30 stores up trouble for the future: it gives a mechanism whereby a Minister may
extend the vassalage period beyond 31 December 2020. The Agreement provides for
it, as between the United Kingdom and the European Union, but there is no need
for the Act to give the power actually to effect it. It could set the end of
the Transition Period in stone.
Clause 31 is another oddity, apparently fettering the negotiation
of the future relationship by reports and motions of the House, and we have
seen how capsy they can be. An
obligation to follow the Political Declaration is fair enough as an earnest of good
behaviour, but here no negotiation can actually take place without its
objectives’ being approved by the Commons. That has shades of Geoffrey Howe: ‘It’s
rather like sending our opening batsmen to the crease only for them to find
that before the first ball is bowled, their bats have been broken by the team
captain.’
Clause 32 will repeal Section 13 of the Withdrawal Act, as being redundant. I advocated this some time ago, and it is good to see the cussed thing going.
Clause 36(1) says “It is recognised that the Parliament of the United Kingdom is sovereign.” No it isn’t: sovereignty resides in the Queen and Parliament acting together. Someone ought to tell them.
Then after more detail on non-derogation from workers’ rights (Corbyn should be pleased – he will still attack it though) and definitions that is it, after just 39 pages. The rest are schedules, with more detail from the provisions already described (all good fun for judicial review lawyers in the coming months).
