You’re on your way now, Bill

After three and a half years, it is hard to believe we are finally (almost) there. A joyous Brexmas to us all: the Withdrawal Agreement Bill is through the Commons; and woe betide the Lords should they try to stall it, after they rushed the Surrender Bill through.

When the first Bill was presented during the Zombie Parliament, I wrote a frank if hurried commentary. The one newly passed by the Commons today is almost identical, with some telling changes.

Much fuss has been made about the loss of a clause headed “Protection for workers’ rights”, but the heading of the lost clause is misleading: it had no protection of any rights: all it was going to do was order Ministers to make a statement about it in every new relevant Bill, which was a ridiculous burden with no legal effect. The fuss about it is disingenuous or mistaken. Additional protection in the area is unnecessary: employment law is mostly enshrined in primary legislation with no reference to European rules and so cannot be changed without an Act of Parliament. In those areas which are affected, such as the ‘TUPE’ regulation, it may in fact need technical adjustment to change references to the European Union and European Economic Area, and where limits are defined in euros.

The clause actually protecting foreign workers’ rights remains unchanged.

The headline change concerns extending the Transition Period. The Withdrawal Agreement provides for an agreed extension and the original bill had clauses on that, but as I wrote a few of days ago, the possibility of an extension makes that extension inevitable, and therefore the new Bill forbids any extension. The Europeans’ negotiators may thing they can override that, but it is not Theresa May in charge any more nor her negotiators (if they could be described as that) but Boris Johnson, who is a very different character, as they have seen. Banning extension is necessary.

A second big change is one I begged for before more than once: the clauses that would have tied the Government to clearing every little step of the negotiations with the Commons have gone. Thank goodness: this part would have made impossible what needs to be a swift, nimble-footed negotiation.

It was noted before that there is an extraordinary Henry VIII power at one point, namely power to modify “any provision made by or under an
enactment (including this Act)“. That is only in an administrative Schedule, not the body f the Act, but the wording looks unprincipled. It appears in Schedule 2 which constitutes the Independent Monitoring Authority for the Citizens’ Rights Agreements; once in Paragraph 39(7) and once in Paragraph 40(3), in both cases to allow the transfer of functions from or the abolition of the quango. In that strictly limited context with a strictly limited scope it is not a worry. It is extraordinary though in its wording, for an Act to grant power for itself to be changed, and I hope its appearance here does not become a precedent.

Finally, the Bill still contains a major constitutional error in Clause 39: it (nominally) says: “It is recognised that the Parliament of the United Kingdom is sovereign.” No it is not. If “Parliament” is here an abbreviation for “the Queen and Parliament together” then it is correct. If “sovereign” is a loose term, then they can get away with it, but Parliament, meaning the two Houses, is not sovereign and never has been. One hopes that a throwaway line in a narrow, functional Act will not be taken as changing a most fundamental part of the Constitution, but with judges these days you cannot be sure.

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Author: AlexanderTheHog

A humble scribbler who out of my lean and low ability will lend something to Master Hobbes

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