The Bill – a commentary

The Withdrawal Agreement Bill was published on 21 October 2019 and presented to the House of Commons the next morning. It is 110 pages long. It is much shorter than its length though.  The Bill was always the intended next step, but the rush was necessitated by the amending resolution passed at Parliament’s extraordinary Saturday sitting, on 19 October 2019, at which the Commons refused approval of the amended Withdrawal Agreement until an Act of Parliament be passed to incorporate it.

It is not short, but not as long in substance as it appears, since most of the material is detail, listing particular statutory provisions that are affected. This shows presumably the complexity that European Union rules have driven into the statute book. 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

Essential 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period, with a few ‘to be read as if’ provisions, and Clause 2 does the same for domestic regulations made under the repealed European Communities Act 1972, then Clause 3 is the usual bundle of Henry VIII powers for tidying-up and Clause 4 extends this in a tortuous and hard-to-follow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. Hard to follow it may be, but it does the job exactly as intended – the complexity to the eye is because it is talking in general terms about powers and enactments not yet identified let alone classified. There could be head-scratching in the implementation, but it need not cause problems in practice. (Section 5 seems to go over old ground covered by Clauses 1 and 2, but there may be a technical difference.)

Continued rights of residence for EU and EFTA citizens

Clause 6 has provisions to give life to the “EEA EFTA separation agreement”. This agreement with the members of the European Free Trade Area has barely been mentioned before but was agreed in 2018. It may not excite Members of Parliament much, but 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 this Clause, which does its job.

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.

Additional provisions

There follow more technical rule-making powers on other areas in the Withdrawal Agreement. First of these concerns the recognition of professional qualifications issued by EU states, which is an important part of the Withdrawal Agreement and indeed the Political Declaration: it was urged by Remainers and Leavers alike, the two sides may be expected to tear into each other about its importance in violent agreement

It continues with rule-making powers on non-discrimination etc in connection with EU workers and cross-border workers. There is even a quango to be established, ‘The Independent Monitoring Authority for the Citizens’ Rights Agreements’ to give employment to any footloose quangocrats.

Then come more random rule-making powers to the point of this Part of the Bill.

Financial provisions

This is essentially to authorise payment of the continued budget participation for the next few months. The financial provisions are in Clause 20. Though the ‘divorce bill’ was one of the more contentious elements of the Withdrawal Agreement, the Clause is plain and workmanlike, following the template of all supply bills.

The Ulster Protocol

The provisions for the ‘Protocol on Ireland/Northern Ireland’ 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.

Continued negotiations

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.’

Final provisions

Clause 32 will repeal Section 13 of the Withdrawal Act, as being redundant. This site advocated this some time ago, and it is good to see the cussed block on the road going. It will be redundant once the Bill passes, but if it remains on the statute book, a chancer lawyer funded by die-hard Remainers may make hay with it still.

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).

See also

Books

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