13 November 2017

The delayed EU Withdrawal Bill finally returns to the Commons this week. Jill Rutter argues that the Government needs to engage with Parliament properly if the timetable for scrutiny is not to be compressed further.

The first of eight scheduled committee days on the EU Withdrawal Bill starts tomorrow. After the second reading in September, the bill should have appeared soon after the Commons returned from its party conference recess. That it failed to appear is evidence of the need for behind the scenes negotiations with backbenchers on the (many) amendments they have tabled. The Government’s precarious position means that any Conservative-supported amendment is a risk.

The EU Withdrawal Bill is only one of at least eight bills that need to get on to the statute book before Brexit

Our graphic sets out the Government’s implied timeline for the negotiations and getting Brexit legislation through Parliament. 

The Government is already making progress with three other Brexit bills: on nuclear safeguards, international sanctions and anti-money laundering and trade (which was introduced last week, straight after the consultation closed). That leaves four more bills pending, but so far we have only seen a white paper on customs. We still await white papers on the contentious issues of migration, agriculture and fisheries.

Getting the bill through the Commons will be difficult, but the Lords will be even harder

Even if the Government makes substantial concessions in the Commons – on issues from scrutiny of secondary legislation to the treatment of devolved powers – it still faces a rough ride in the Lords. The Lords has already expressed its dissatisfaction with many elements of the bill and where the Government can easily be outvoted.

The Government will hope that the bill could start its Lords passage early in the New Year. But even if it does, it cannot guarantee when the bill will leave the Lords – business there cannot be “programmed” as it can be in the Commons. The Government may face similar battles over other Brexit legislation.

The later the bills get Royal Assent, the harder it will be to get secondary legislation through by Brexit day

The Government faces a pincer at two ends of the legislative timetable. Until it knows the outcomes of the negotiations with the EU, it will be hard to fill in some of the key elements of the future relationship. That is why the EU Withdrawal Bill in its current draft gives ministers such extensive powers to make changes in the light of any agreement.

But at the same time, the Government faces the potentially hardest of all deadlines: that the clock stops ticking at 23:00 on 29 March 2019 and that the UK statute book might not be ready for day one of Brexit. Both the Government and Parliament need to recognise that it is in no one’s interests for that to happen.

The Government should add new primary legislation to enact the withdrawal agreement

The Government has not yet confirmed whether there will be separate primary legislation on the withdrawal agreement, but reports suggest it may accept this in light of the amendments proposed to the bill. 

As we have argued, primary legislation would help to fulfil the commitment of the Brexit Secretary, David Davis, to entrench any agreement on citizens’ rights in UK law – and would be a way of making any agreement less susceptible to judicial review. But adding another bill – to be introduced after Parliament has voted on the agreement itself – adds more pressure to an already tight legislative timetable.

The Government needs to get its parliamentary act together now more than ever

In its white paper on the EU Withdrawal Bill, the Government said it was “mindful of the need to ensure that the right balance is struck between the need for scrutiny and the need for speed. This white paper is the beginning of a discussion between government and Parliament as to the most pragmatic and effective approach to take in this area”. That discussion never happened. 

The Government stuck with its strategy of non-engagement with Parliament and it is now finding that has added to the time pressure, not expedited passage of the bill.

As Lord Bridges, former Parliamentary Under Secretary of State for the Department for Exiting the EU, wrote last week: “I urge the Government to listen to any ideas as to how to tackle parliamentarians’ concerns. This is not a usual bill, we are not in usual times, and so this bill should not be managed by whips in the usual way.”

That would be a step forward.

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