Open letter to Rt Hon Stephen Barclay MP : The Withdrawal Agreement Bill and the importance of proper legislative scrutiny

Update: We have now received a response you can read here.

Today, we have written to Rt Hon Stephen Barclay MP asking the Department of Exiting the European Union to publish the Withdrawal Agreement Bill in draft as soon as possible. 

This is the piece of legislation that will implement the Withdrawal Agreement in domestic law. Were Parliament to approve the Brexit deal, the government has to get this Bill through Parliament in order to ratify the agreement.

The Withdrawal Agreement Bill will have massive constitutional, political and legal implications- it is astonishing that it has not even but published yet.

Regardless of the outcome of the next stages in the process of withdrawing from the European Union, we believe the government needs to publish the Bill in draft as soon as possible for the purposes of proper parliamentary scrutiny.

Please find below our letter to Rt Hon Stephen Barclay MP adressing our concerns about the absence of the Bill and why the government should publish it in draft as soon as possible. Here is also our briefing to MPs, highlighting a number of issues likely to arise in the Bill.

Rt Hon Stephen Barclay MP                                                                       14 March 2019

Secretary of State for Exiting the European Union

9 Downing Street

London

SW1A 2AS

United Kingdom

CC: The Chair of the Exiting the European Union Committee, the Chair of the European Scrutiny Committee, the Chair of the Constitution Committee, the Chair of the EU Justice Sub-Committee

Dear Minister,

Re: The Withdrawal Agreement Bill and the importance of proper legislative scrutiny

We are writing to express our concern about the absence of the Withdrawal Agreement Bill and the lack of time left for Parliament to scrutinise this piece of legislation, which will have significant constitutional, legal and political implications. The government has not set out a time frame in which this legislative process ought to take place. Doing so is crucial because, as required under section 13 (1) (d) of the European Union (Withdrawal) Act 2018, the Withdrawal Agreement Bill has to complete its parliamentary passage before the government may ratify the Withdrawal Agreement.

Presuming exit day as set out in the European Union Withdrawal Act 2018 remains 29th March 2019, Parliament will have less than 11 sitting days to scrutinise a piece of legislation that will be of utmost importance constitutionally and politically. Or if there is a short extension to Article 50, the government should still publish the Bill in draft now, giving Parliament as much time as possible to scrutinise it.

The government has so far justified not publishing the Withdrawal Agreement Bill on the basis that there are still issues left to resolve, both with the EU and with the UK Parliament. However, this does not apply to parts of the deal where there is already an agreement in principle across Parliament and with the EU, for instance, on Part Two of the Agreement on citizens’ rights. It is therefore hard to understand why the government cannot publish these provisions in draft now.

Despite the Department for Exiting the European Union’s publication of a White Paper on the Withdrawal Agreement Bill, there are a number of questions about the Bill that we believe need to be clarified. For instance, Article 4 the Withdrawal Agreement makes certain commitments in regards to the constitutional effect of the Withdrawal Agreement Bill once enacted. The government has said that to repeal provisions in the Withdrawal Agreement, future parliaments will have to take ‘an additional procedural step’. Since the publication of the White Paper in July, there have been no further details about how this step may look like. Whatever the ‘additional procedural step’ the government plan to introduce, it will likely attract fierce debate in Parliament. More importantly, parliamentarians and civil society will need time to assess its constitutional implications.  

There are also questions surrounding how citizens’ rights will be entrenched and protected. Further issues also need clarification, such as how the Protocol on Ireland and Northern Ireland will be implemented in domestic law; whether the courts will disapply domestic legislation incompatible with the Withdrawal Agreement; and whether the EU Charter of Fundamental Rights will be transposed to domestic law for the purposes for commitments set out in the Protocol and Part Two of the Agreement.

Our concern is that parliamentarians, civil society and business will not have sufficient time to carry out effective scrutiny nor have any meaningful input in the legislative process if the Withdrawal Agreement Bill is rushed through Parliament.

We remain concerned that the government will fast-track the Withdrawal Agreement Bill through Parliament, using the argument that Parliament has already debated and agreed to the Withdrawal Agreement in principle, and so there is no need to seek further amendments or clarifications to the Withdrawal Agreement Bill. This is simply not the case, as highlighted with the numerous issues raised above. While Parliament has spent considerable time debating the Withdrawal Agreement and the Political Declaration on the Future Relationship, the issues relating to the domestic implementation of the Agreement has not been debated sufficiently nor clarified by the government.

Regardless of the outcome of the next stages in the process of withdrawing from the European Union, we believe the government needs to publish the Bill in draft as soon as possible for the purposes of proper parliamentary scrutiny.

Yours sincerely,

Brexit Civil Society Alliance

Time is running out for proper scrutiny of Brexit Bills

---

We have described Brexit as feeling very much like groundhog day before and that feeling does indeed persist. May has headed to Brussels again, Cabinet working groups have been established in an attempt to find a way forward, and there is yet to be an agreement on what changes to the backstop should look like.  

In Parliament: time is running out for proper scrutiny of Brexit Bills

Despite Parliament having a mountain of Brexit Bills to get through, MPs have not debated any single one of the Brexit bills this week. If the UK were to exit with no deal then it would be even more critical that these bills were passed before the 29 March, to avoid gaps in legislation. Instead, parliamentary time has been spent debating, among other things, sport in the UK, and beer taxation and pubs. 

It’s not that these aren’t important issues, but with 49 days to go until exit day and no clear path forward as of yet, you’d think that Brexit legislation would at the top of the agenda. As we wrote in our briefing to MPs on impacts of no deal- with the parliamentary clock being run down before exit day, there are serious questions to be raised about the amount of time left for appropriate scrutiny and outside consultation. This is particularly pressing given that most pieces of Brexit legislation contains incredibly broad lawmaking powers. Parliamentarians and civil society must have the time to assess the breadth and appropriateness of these powers.

Opposition MPs have also warned the government this week against trying to sneak through large chunks of delegated legislation (i.e. statutory instruments, or ‘SIs’) before exit day, without proper scrutiny from parliamentarians. Hansard Society’s tracker shows that just 119 of the 600 SIs relating to Brexit has finished their parliamentary passage. That leaves up to 40%  of SIs that haven't even been laid and are therefore yet to begin their journey through Parliament. SIs are normally used for small, technical changes relating to primary legislation. However, the scale of the SIs going through Parliament and the speed which they are passed has led to fears that more controversial changes are being rushed through. Hansard Society (who received Geek of the Week at this week’s Peston) has some great info on delegated legislation here.  

The Public Law Project’s SIFT project scrutinises statutory instruments that have been created to facilitate Brexit. The aim of this project is to check whether the SIs conform to public law standards and do not undermine fundamental rights. More information and contact details are here.
 

The parliamentary progress of current Brexit Bills: 

Informed by the Institute of Government’s tracker, available here

The Withdrawal Agreement Bill: 
Status: not yet been published. White Paper published here.

If Parliament approves the Withdrawal Agreement, the Government will have to then bring forward the EU (Withdrawal Agreement) Bill to give effect to the Brexit deal in domestic law. The Bill will contain provisions that are likely to be highly contentious, both politically and constitutionally. It will also contain important provisions about citizens’ rights, such as how they will be protected and enforced. 

The government has recently reaffirmed its commitment to bring forward the Withdrawal Agreement Bill as soon as possible in the event of parliament approving the withdrawal agreement. However, it has not clarified a time frame in which this legislative process would to take place. Doing so is crucial because, as set out in section 13 of the EU (Withdrawal) Act, the Withdrawal Agreement Bill has to complete its parliamentary passage by March 29th 2019, in order to give legal effect to the Withdrawal Agreement.  The EU (Withdrawal) Act took 11 months to go through Parliament. Parliament now has less than 50 days to scrutinise a bill that will carry significant constitutional weight and likely attract fierce debate in Parliament. And it has still not been published.

The time has been spent this week debating sport in the UK and other, less pressing matters, to say the least, makes these final stages in the Brexit process all the more contentious and fraught. There are serious questions to be raised of the government as to why they haven’t yet published the Withdrawal Agreement Bill, at least parts in part or in draft. Doing so would mean that parliamentarians, business and civil society have as much time as possible to consider its provisions, which will no doubt have serious constitutional and legal implications. As Paul Daly, a Senior Lecturer in Public Law at Cambridge University recently commented, it is a ‘constitutional outrage’ that the Withdrawal Agreement Bill has not yet been published in draft form.

The Trade Bill: 
Status: in the House of Lords. Bill and all accompanying documents here.

The EU has 40 preferential trade agreements covering 71 countries, which the UK needs to roll over whether or not it agrees on a Brexit deal with the EU. The purpose of the Trade Bill is to do exactly that - roll over existing trade agreements.

But the Bill includes extraordinarily wide powers (as is the case with much Brexit legislation) that ministers can use to undermine rights and standards, as the Equality and Diversity Forum briefing explains here.

The Financial Times has also reported that the Department for International Trade will not likely be able to conclude trade deals with most non-EU countries by the scheduled Brexit date of 29th March. The DIT told 30 representatives from business this week that there was no certainty that trade deals the EU has with countries around the world could, in fact, be rolled over or duplicated in time.

The Draft Environmental (Principles and Governance) Bill: 
Status: not started its parliamentary journey, draft Bill available here.

The Bill aims to ensure that environmental protections are not weakened as a result of leaving the EU and will also establish a watchdog to hold the Government to account on environmental standards and regulations.

Greener UK, ClientEarth, and other expert witnesses gave evidence to the House of Lords’ Environment, Food and Rural Affairs Committee on the draft Environmental Bill this week. The witnesses agreed that the draft Bill needs significant improvement, both in terms of enforcement mechanisms and the independence of the Office of Environmental Protection. More information about that evidence session is in this thread and you can also watch the evidence session here.

Immigration Bill
Status: awaiting Committee Stage in the Commons- no date has yet been confirmed. 

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill will end free movement of European Economic Area (EEA) nationals and their family members, making it possible for the Government to bring them under the domestic immigration regime.In doing so, it grants very wide-ranging powers to ministers, including Henry VIII powers, to modify primary or secondary legislation to achieve this aim. In combination with existing powers to make changes to the Immigration Rules through secondary legislation, Home Office officials will now have even greater powers to change immigration laws with little oversight from parliamentarians.

See below for more resources & information about the bill: 
 

• Unison briefing ahead of 2nd reading of Immigration and Social Security Co-ordination

• Public Law Project: A No Deal, No Appeal: A Case for Amending the UK's Immigration Bill

• Children Society: Briefing ahead of 2nd reading of the Immigration Bill

• IMIX has put together a great explainer video on the settled status scheme. You can find it here.

Agriculture Bill
Status: in the House of Commons. Bill and accompanying documents available here.
The Bill aims to establish a new system for payments to farmers and landowners after the UK leaves the EU Commons Agriculture Policy (‘CAP’). You can find this great explainer on our website here. Written by Vicki Hird, Campaign Coordinator at Sustain, it explores how the Bill both delivers and fails on areas such as protecting livelihoods, the environment, health and nature.

Fisheries Bill: 
Status: in the House of Commons. Bill and accompanying documents available here.

The purpose of the Bill is to create a domestic fisheries policy governing foreign access to British fishing grounds, the licensing of fishing boats and grants connected to fishing and marine conservation.

Healthcare (International Arrangements) Bill: 
Status: in the House of Lords. Bill and accompanying documents availablehere.

The Bill gives Britain the power to fund and implement reciprocal healthcare schemes and share data. It aims to allow the UK to maintain reciprocal healthcare arrangements with EU countries, but is not limited to the EU and could also allow Britain to implement new schemes with countries outside the EU.

Financial Services (Implementation of Legislation) Bill: 
Status: Only needed in the event of no deal. Bill and accompanying documents available here.  

This Bill would give the government power to implement and amend EU financial services regulations that have been agreed or are in negotiation and due to be implemented within two years of Brexit.

Human Rights Consortium: A No Deal Brexit

The Human Rights Consortium in Northern Ireland has published a 3-page snapshot on the rights impacted by a no deal Brexit. The note sets out how no deal Brexit will have serious consequence for existing human rights legislation; the impact of on the border between the Republic of Ireland and Northern Ireland; security cooperation; right to health; civil judicial cooperation and the environment. Read the full paper here.

In other news: Labour’s new five demands

Jeremy Corbyn has laid out Labour’s five conditions for backing a Brexit deal in anopen letter to Theresa May. This contains five demands that would need to be met for the Labour party support May in the Commons.

Corbyn’s demands signal that amends to the political declaration on the future relationship, rather than the withdrawal agreement itself, would be sufficient to win Labour’s support. 

Some see this as demands which can actually be met, unlike Labour’s original six tests. Essentially, the five new demands opt for a ‘softer’ Brexit: ‘A permanent and comprehensive UK wide customs union; close alignment with the single market; dynamic alignment on rights and protections; commitments on participation in EU agencies and funding programmes (in areas like the environment, education and industrial regulation), unambiguous agreements on the detail of future security arrangements (including the European Arrest Warrant).

There also seems to be serious discussion within the government on how a wide-ranging employment bill, with enhanced protections for workers’ rights, could win over more Labour MPs to support the deal. More info here.

Next week in Parliament

Andrea Leadsom announced this week that the government will ‘bring a revised deal back to the House for a second meaningful vote as soon as we possibly can. Should that not be possible by 13 February, the Government will table an amendable motion for debate on 14 February’. So, the PM will update the House of Commons next week and Leadsom will bring a further business statement if necessary as a consequence of her statement. Leadsom also confirmed that the motion next week will not be brought back under section 13 of the EU Withdrawal Act.

When asked whether MPs will be able to amend and vote on the motion, Andrea Leadsom said that ‘if we are not able to bring back the revised deal for that second meaningful vote, the business for Thursday [14 Feb] will be a debate on a motion relating to the UK’s withdrawal from the EU’. 

York Round Table: Brexit & Civil Society

From questions around the replacement of EU funding that the third sector receives, the settled status scheme to the maintenance of fundamental rights, it is evident that Brexit will have significant impacts on civil society. Mike Hawking from the Joseph Rowntree Foundation will speak about the UK Shared Prosperity Fund and Kate Young from ChemTrust will discuss how Brexit will impact on chemicals and environmental policy. Join us to discuss this and more at our roundtable event in York on the 25th February. More details & sign up here.

---