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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The work begins: Get Brexit Done

I’m still celebrating, but the work is beginning at once. Just as after the office party the ’phone will ring, so now the new, giddy MPs must get to work at speed, to get done all those things that should have been done in the last three and a half years, and more.

First of all: get Brexit done finally.  It is almost a year late.

A Withdrawal Agreement Bill will be introduced on Friday, and a programme motion to push it through the Commons before Christmas – or alternatively a Section 13 motion. One problem facing the renewed Government is that the Surrender Act is still in force and obliges the Government to go for the Malthouse Compromise and nothing else:  that must be cleared away and all the tripwires the awkward squad imposed during the Zombie Parliament, and so a Bill is needed.

We had a commentary on the Withdrawal Agreement Bill on the day it was published.  If the same Bill is introduced, the same issues are there; it is unnecessarily complicated because it was done in a hurry and appears to duplicate powers which are already in the existing European Union Withdrawal Act.  It also has provisions with a burdensome procedure for the Government to have to keep referring back to the Commons on the course of the negotiations for a new trade deal. Maybe that was a way to win some wavering support in the hung House of Commons. The voice of the Commons should be heard in the negotiations as they will be required to pass an Act to implement the resulting treaty, and they will want to voice priorities in terms of the extent to which Britain will be bound by agreements, and this will include important areas such as intellectual property, state aid, level-playing-field tendering and co-operation in VAT and data-sharing. However too much structure can make the negotiation slow and encumbered, and since it has to be concluded by December 2020, that is worrying.

In one element though the government can properly be hobbled in its negotiation, and that is where there is the possibility of extending the Transition Period (the ‘vassalage period’ as it has been called). The Withdrawal Agreement provides for an agreed extension, but it would be unwelcome and against the Manifesto pledge. It is hinted that the Bill to be brought on Friday will bar the government from actually extending. That is wise: it was the possibility of extension of the Article 50 period which made that extension inevitable, and the possibility of extending the vassalage will be very tempting to Brussels as they prevaricate in their negotiations over the course of 2020.

Never forget in all of this, that although there is a large Conservative majority and the will to get this through, and though all the blue rebels have been ousted and swept into obscurity, the Labour benches still contain the likes of Hilary Benn, prime mover of the Surrender Act, and Keir Starmer, co-author of Section 13 and one of those who gave aid and comfort to the enemy in Brussels. They may be overpowered, but they will not be silent.

This morning Michel Barnier made a useful observation: he said that a complete negotiation of an international trade treaty would take far longer than twelve months, but that it should be possible to do enough in that time to continue the trading relationship. That is a constructive way ahead.

With a common-sense approach and goodwill it should be possible to do the whole treaty in twelve months, but common sense and goodwill and not among the EU’s known qualities, not alacrity come to that. Theresa May’s team were content to sit back and wait for Brussels to propose things, with the result we saw. This time it will need British will to push the new trade deal at every stage, and an open line to Eire – the one European state which does display common sense on occasion. Then if the treaty text can artfully keep to areas within the European Union’s ‘exclusive competence’ then the treaty need only pass through the European Union’s own procedures and not be tripped up by a troublesome member state; the EU-Canada CETA strayed beyond and was felled by the Walloon regional parliament. If for a full treaty it is impossible to keep to the areas of exclusive competence, Monsieur Barnier’s “enough” treaty could, with detail to follow.

If it is likely then that the trade treaty will be a multi-stage process then the Government must be free to negotiate it in stages and sign up in stages, and the terms of any Bill before the Commons must not inadvertently hamper that.

I may be getting ahead of things though: the first thing is to get Parliament to grant whatever authority the Government needs to sign the deal, and (whether at the same time or following on its heels) to repeal the Surrender Act and the unfortunate Section 13.

Then by December we may see a signature on a new treaty. Not in Rome, as it is too redolent of the original treaty which got us into this mess in the first place, and of the Europeans’ imperial ambitions: may I suggest Wittenberg?

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The five stages of Grieve

The five stages of Grieve have been identified by psychologists:

1.   Denial

2.   Anger

3.   Bargaining (with foreign enemies)

4.   Believing your own wildest rhetoric

5.   Standing as a vanity candidate out of spite in a General Election

Many former MPs recently defenestrated may be feeling the signs of Grieve as the nights lengthen and the season of ill-will approaches. Once outgoing characters in an established rut, now thrown into the real world and feeling Gaukey, we should not be cruel – they are in need of help and counselling.

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Headdesk, again. What next?

Whatever happened to “no more extensions”? Extension is not inevitable, but may be probable. It removes the urgency upon Parliament to process the Withdrawal Agreement and may encourage some to withdraw their consent from the terms agreed.

The EU has forgotten though the stinger in the Surrender Act, introduced in the Kinnock Amendment: if the government is forced to accede to an extension, it is empowered only to agree to the Malthouse Compromise, which means dropping the whole Ulster Protocol. That will not go down particularly well in Dublin. Before they formalise this ‘flextension’, will they think about that?

The elephant in the room has used his Tusk. It is not all in their favour though.

The Boris-version Withdrawal Agreement was agreed specifically for the Reformation Day exit date. If it slips by, everything is up for grabs again, or would be were it not for the Surrender Act insisting on the Agreement minus the Protocol.

As it happens, the date proposed by the European Council is not a fixed date, out on 31 January and no earlier: it is a last date. Article 50 states that exit happens when a Withdrawal Agreement comes into effect, which could be Thursday, or Friday.

We go back to what we wrote before on this: the Withdrawal Agreement Bill is unnecessarily complicated, which was a gift to Labour. DExEU took their eye off the ball. A one-page bridging bill would have sufficed and could get through in days. If they are not spooked by the apparent 3 months more – it could still be three days.

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Build the bridge, now

A week and a half before Exit Day and Parliament has stalled the Bill. The no-deal approaches, which no one in Parliament wants. The Bill was absurdly complicated for one that had to be rammed through in three days: it is a Civil Service idea of how things should be done, with every jot and tittle accounted for, when that was not necessary at this stage.

It only needs a very short Act to put the Withdrawal Agreement into practical effect. The detailed provisions can follow on.

The European Union (Withdrawal) Act 2018 already contains bridging provisions of a sort: it continues the effect of EU legislation until it is changed.  The two main concepts in in the 2018 Act can be reused: “EU-derived domestic legislation” and “direct EU legislation”. The Withdrawal Agreement only requires that this legislation (in certain areas) should not be changed and that it may be added to.  Therefore to bridge the gap, a ‘Bridging Bill’ need only say that in those transition areas:

  • The power to change these rules shall not be exercised during the Transition Period until except to adapt them to the new circumstances, such as to apply as if references to European Union’ were to ‘the United Kingdom and the European Union’; and
  • The Secretary of State may in that period enact new EU-derived rules.

That suffices for the bulk of what is in the Withdrawal Agreement Bill and bridges the gap: the existing Withdrawal Act does the rest.

If the Commons are determined that the Agreement must be ratified, the Bill could add two lines:

  • The Government shall ratify the Withdrawal Agreement and the Political Declaration and shall use all its statutory powers in accordance with that Agreement.

Job done.

The Ulster protocol needs primary legislation, but as it only applies as from the end of the Transition Period,,31 December 20of 19, there is time enough for the Lords and Commons to debate and enact it.

For my usual fee, I could even draft the necessary Bill over a lunchtime.

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