The most worrying thing about the Withdrawal Agreement Bill? What it doesn't say

On Monday night, the government published the long-awaited Withdrawal Agreement Bill—the piece of domestic legislation that is needed to implement the Brexit Withdrawal Agreement in domestic law. This was the first-time parliamentarians have seen the detail of the legislation, despite much of it having been drafted many months ago. The government now hopes to rush it through parliament, in order to meet its 31st October Brexit deadline.

The bill runs to over 110 pages, and includes detailed provisions on issues such as the financial settlement (or “divorce bill”), the transition period and how EU law in force today will operate at the end of it. However, how large parts of the Withdrawal Agreement will be implemented in domestic law remains uncertain.

The bill proposes that key parts of the Withdrawal Agreement are to be legislated for through secondary legislation at a later date—including many so-called “Henry VIII powers” that allow ministers to change primary legislation. For instance, almost all of the provisions needed to give effect to the citizens’ rights part of the agreement will be implemented through secondary legislation—including the statutory appeals process that will strengthen opportunities for judicial redress against decisions to restrict residence rights.

Likewise, the government plans to give itself broad powers to legislate for the new Northern Ireland protocol, and says very little about how the arrangements would be implemented in practice. A broad power also exists to deal with the so-called “other separation” issues—such as how goods placed on the UK or EU market under EU law before the end of the transition period are to be treated after transition ends. A sense of the scale of the powers involved is provided by the Delegated Powers Memorandum, published alongside the bill: at 104 pages it is almost twice as long as that for the government’s last flagship Brexit act—the EU Withdrawal Act—which was heavily criticised in parliament for the number and scope of the powers it included.

To some extent, giving the government such broad powers was always going to be necessary. The revised Northern Ireland protocol was only recently agreed between the UK and EU—leaving little time to draft detailed legislation, and how the protocol would work in practice depends in part on what legal arrangements are in place when it comes into effect, making it difficult to legislate in detail at this stage. The government has also made a conscious decision to legislate for much of the citizens’ rights protection through immigration rules—meaning broad powers and high volumes of secondary legislation were inevitable. The government’s own White Paper on “Legislating for the Withdrawal Agreement between the UK and EU,” published in June 2017, made clear that it was likely to include many broad powers.

But even so, the incredibly short timeframe for parliamentary scrutiny deprives parliament of the ability to properly consider whether all the powers in the bill are necessary—or whether the government should instead have included more detailed provisions in the bill itself. Even if parliament accepts that the government needs to be given the powers to legislate through secondary legislation, further questions arise as to what level of scrutiny such secondary legislation should be subjected to, particularly given long-standing concerns about how weak current scrutiny of government powers is. MPs and Peers may want to propose new scrutiny arrangements and seek reassurances from the government about how the powers will be used. Getting these right would take time, and require a constructive dialogue between parliament and the government.

The Withdrawal Agreement was always going to be a legislative minefield. Giving effect to the transition, implementing complex commitments on citizens’ rights and re-engineering the EU Withdrawal Act to ensure its provisions continued to work during and after the transition period raise many tricky legal problems, some of which it is legitimate to legislate for through secondary legislation. But the government is currently asking MPs and Peers to blindly trust that the powers are both necessary and the appropriate level of scrutiny is attached. This risks alarming parliamentarians, undermining support for the bill and could lead to bad law that allows the government to make significant legal changes with limited parliamentary oversight. If parliament wants to take back control, it should care about what the WAB doesn’t say, as well as what it does.

 

Joe Marshall is a Researcher at the Institute for Government