Tuesday 22 October 2019

The Withdrawal Agreement Implementation Bill

Professor Steve Peers, University of Essex

After months of anticipation, we finally know the shape of the law which would govern the UK’s ratification of the revised withdrawal agreement: the EU withdrawal agreement bill. (See also the explanatory notes on the bill, and further documents) The government wants this to be fast tracked in a few days, in order to meet its deadline of October 31. This is an absurdly hasty approach to parliamentary scrutiny of a bill which runs to 115 pages, with 40 clauses and six schedules – especially given that the government has in the meantime been compelled to request an extension of EU membership pursuant to the Benn Act (discussed here).  

It’s a complex bill, and this blog post does not aim to be comprehensive: it’s a compilation of selected first impressions (see also my Twitter thread of initial reactions). Since the bill is closely related to the revised withdrawal agreement, my earlier analyses of that agreement (overview; transition period; dispute settlement; and citizens’ rights) may be relevant.   

Approval of the withdrawal agreement

First: the bill switches off both the specific rules for approval of the withdrawal agreement in the EU Withdrawal Act (the so-called ‘meaningful vote’), and the general rules for approval of international treaties in the Constitutional Reform and Governance Act (CRAGA). The effect of this is that as soon as the bill is passed, the government can ratify the withdrawal agreement without holding a further vote.

The transition period

As I noted in my earlier analyses of the revised withdrawal agreement, the agreement in effect creates a deferred no deal outcome – shifted from end October 2019 to end December 2020. That’s because the transition period set up in the agreement (which ensures the continued application of EU law to the UK) ends in December 2020. Note, however, that the provisions in the withdrawal agreement on citizens’ rights, the financial settlement and Northern Ireland will not expire at the end of the transition period. (In fact, for the most part that’s when the provisions on citizens’ rights and Northern Ireland kick in).

The possible deferred no deal outcome in December 2020 is therefore better described as a ‘no trade deal’ outcome. Can it be avoided, in the event that the UK and the EU have not negotiated a further relationship treaty on trade by that time (as seems highly likely)? Yes: it’s possible to extend that period by a period of one or two years, subject to the agreement of both sides in the Joint Committee set up to implement the agreement.

However, the circumstances are somewhat different from the extension of EU membership by the UK. There’s no underlying power to revoke the notification to leave any more. The decision can’t be taken at the last minute, like the membership extension decisions, because the withdrawal agreement requires the transition period extension decision to be taken by 1 July 2020. Moreover, the transition period extension decision requires a difficult negotiation on further UK contributions to the EU budget (the scheduled end-2020 to terminate the transition period coincides with the end of the EU multi-annual budget cycle).

In the bill, Parliament has a role in extension of the transition period. It must approve any government decision to extend it (as agreed with the EU). But there's no power for Parliament to require the government to make a request for an extension – and it’s government policy to leave at the end of 2020. (In the event that an extension is agreed, the bill would give effect to it by secondary legislation, similar to the EU Withdrawal Act provisions on extension of EU membership.) There’s already one proposed amendment by an MP to increase Parliament’s role; it will be important to see if an amendment like this passes.

During the transition period, the European Communities Act, loathed by Eurosceptics because it's the main domestic law basis for EU membership, comes back to life under the bill. The withdrawal agreement says that the UK has to apply new EU measures (other than those covered by UK opt outs) during the transition period, and there's provision in the EU for parliamentary scrutiny of such new EU measures. But needless to say, debating a motion on new EU measures in Westminster will have no impact on the EU side – given that the UK will not have MEPs or ministers at the negotiating table.

As a further measure to pacify Eurosceptics, there’s a parliamentary sovereignty clause. which is presumably intended to assert that Article 4 of the withdrawal agreement, which insists on the supremacy of the agreement in domestic law, doesn't overturn the basic principles of the UK constitution. There’s no small irony here, given that the Eurosceptics in question rejoiced when the government recently unlawfully suspended Parliament. In light of the Eurosceptics’ behaviour, Brexiting for parliamentary sovereignty makes as much sense as dieting for obesity.  

Implementing the withdrawal agreement

There's a general clause giving domestic legal effect to the rest of the withdrawal agreement other than the transition period. This includes the citizens’ rights provisions. I’ll focus on two aspects in more detail: citizens’ rights and workers’ rights.

Citizens’ rights

The citizens’ rights provision of the withdrawal agreement aim to preserve most of the same status that EU27 citizens in the UK, and UK citizens in the EU27, have on the basis of EU free movement law, if they moved before the end of the transition period in the withdrawal agreement. The specific provisions in the main part of the bill set out further powers for the government to implement it as regards: the application deadline for EU27 citizens; frontier workers; restrictions of entry and residence; grounds for deportation; appeals and judicial review; recognition of professional qualifications; social security; non-discrimination; and workers’ rights (in the context of free movement). All of these provisions refer back to the withdrawal agreement; they are not general power to do anything the government likes, even in breach of it.

The clause on the application deadline would be a good place to insert an amendment to ensure that EU citizens are not deported or subjected to any other detriment due purely to missing the deadline. Furthermore the bill should be amended to protect the position of those whom the UK is only protecting on a discretionary basis (for instance, the non-EU family members of UK citizens who return to the UK from an EU Member State, and those who are not working but whom the UK considers do not have ‘comprehensive sickness insurance’ because they rely on the NHS.

In addition, the withdrawal agreement requires the UK to set up an independent monitoring authority for EU27 citizens’ rights. This is established in a schedule to the bill. EU27 citizens can complain to this body about their treatment, and it can launch inquiries or court proceedings as a follow-up. However, it might be questioned whether the body is really independent, given the influence which the Bill gives the Home Secretary over appointments. A better approach would be appointments by an independent body or a parliamentary committee, or perhaps adapting the model for judicial appointments.

Workers’ rights

Some Labour MPs have brought themselves to support the withdrawal agreement based on promises for protection of worker’s rights. How substantial are these – in light of the removal from the withdrawal agreement of the protection for such standards (forming part of the UK-wide customs union backstop) in the earlier version of the agreement?

According to the bill, the government must release a statement as to whether a new bill goes below EU standards on employment law or not. But it can still propose a bill even if it drops below those standards. As for new EU legislation on workers’ rights, the government must report on whether they are higher than UK standards, and if so whether they intend to match them.

This leaves obvious gaps: what about secondary legislation related to workers’ rights? What about gaps between UK courts’ interpretation and the CJEU? And even the core commitments are not very impressive – a sort of Potemkin village of apparently solid promises which are actually empty facades. If Labour MPs fall for this, I have a red flag in Florida I’d like to sell to them.

A more genuine commitment would: rule out reduction of EU standards by means of secondary legislation; require the UK courts to keep to any minimum standard set by the CJEU unless an Act of Parliament requires otherwise, with the power for the courts to go above that standard; and match new EU legislation on workers’ rights unless Parliament votes against it (or at least, leave to Parliament the choice whether to match the new legislation nor not).  

Future relationship

The bill regulates the future relationship between the UK and the EU too. The government's negotiating strategy must be approved by Parliament (it’s not explicit whether Parliament could amend that strategy), and ratification of the resulting treaties must be approved by Parliament, in much the same way as approval of the withdrawal agreement under the EU Withdrawal Act. So we are promised more ‘meaningful votes’ in future – assuming that there are any treaties with the EU to approve.

But there’s a catch: any negotiating guidelines have to be ‘consistent with the political declaration’ on the future relationship, which suggests that this non-binding agreement between the UK and the EU attains a sort of binding effect in domestic law. But this declaration rules certain things out, such as a customs union or single market relationship. So, to paraphrase Henry Ford, the government is telling Parliament that it can vote for any negotiation strategy it likes – as long as it’s blue.

We can expect amendments to the bill on this issue, including on the question of a customs union. It has been argued that the opposition parties who want a different relationship with the EU should just roll over on this point and wait to win an election. But we had an election in 2017 – in which the future relationship with the EU was an issue. Those who voted for the opposition parties then voted for manifestos promising to support a close relationship with the EU; so why shouldn’t the opposition parties try to amend the bill to give effect to these preferences? After all, the government chose to hold an early election on the issue of Brexit, and lost its majority.

This goes back to underlying themes in the Brexit debate. Supporters of the government’s notion of One True Brexit gloss over that at various times this One True Brexit – which ‘everyone knew they were voting for’ – has constituted the first withdrawal agreement, the revised withdrawal agreement, and no deal at all. The government blames its likely inability to achieve its Brexit objectives by the end of October on judges judging, Remainers moaning, Parliament legislating, and the EU parking the bus in the Irish Sea. But at the root here is voters voting: depriving the government of its majority in an election in which they were asked about Brexit policy.  

Barnard & Peers: chapter 27

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