24 October 2019

The Withdrawal Agreement Bill would give the government sweeping new powers that may have serious – and worrying – consequences for parliamentary sovereignty, writes Joe Marshall.  

When MPs approved the second reading of the government’s Withdrawal Agreement Bill – the piece of legislation needed to implement the Withdrawal Agreement into domestic law – they paved the way for further parliamentary debate. But the bill is now on ice, after MPs then rejected the government’s proposed timetable for passing the bill – so short that it would almost certainly have frustrated proper parliamentary scrutiny.  

The bill runs to over 110 pages, but it remains unclear how large parts of the Withdrawal Agreement will be implemented. Instead of detailed legislative provisions in the Withdrawal Agreement Bill itself, the bill proposes that ministers should be empowered to make many of the necessary legal changes using secondary legislation at a later date, and with far weaker parliamentary scrutiny. This includes a wide range of so-called Henry VIII powers which allow ministers to change primary legislation.  

So time for proper parliamentary consideration of the bill is vital, not just to understand what the bill does say but also for what it does not. 

The task of preparing UK law for Brexit was always likely to require broad government powers  

 The sheer scale of the powers proposed is brought into stark relief by the delegated powers memorandum accompanying the bill. It runs to 104 pages, which it is almost twice as long as that for the EU Withdrawal Act – the government’s last piece of flagship Brexit legislation – criticised by Parliament for giving "excessively wide law-making powers to ministers." 

Almost all of the citizens’ rights provisions – including the statutory appeals process that will strengthen opportunities for judicial redress against decisions to restrict residency rights – are expected to be implemented by these powers. Broad powers are also proposed to implement the Northern Ireland Protocol and the ‘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 the transition ends. These include Henry VIII powers that allow ministers to amend primary legislation. 

This is not surprising. The daunting legislative task of preparing UK law for leaving the EU always meant that broad powers to make secondary legislation were always going to be needed. The UK and EU only agreed to the revised Northern Ireland Protocol last week, leaving little time to translate it into detailed domestic legislation. How the arrangements will work in practice depends in large part on what legal arrangements are in place if, or when, it comes into effect. This makes it difficult (and potentially pointless) to attempt detailed legislation now. Other changes are simply too technical to warrant inclusion in an Act of Parliament.   

Parliament should not take the government’s word that broad powers are necessary 

The government’s white paper on Legislating for the Withdrawal Agreement between the UK and EU, published in June 2017, flagged up that it was likely to rely on broad powers. Likewise, the delegated powers memorandum for the Withdrawal Agreement Bill states that "it is recognised that some of the delegated powers provided for in this Bill are necessarily broadly drawn", but that the government has learnt lessons from parliamentary scrutiny of the EU Withdrawal Act.  

But despite these advance warnings, Parliament should not have to take the government’s word that the powers are necessary or that the scrutiny provisions included in the bill are sufficient. Many of these powers have been around in draft form for a long time, and the fact the government missed the opportunity to promote scrutiny by publishing a draft of the bill earlier is no excuse for stifling debate now. Parliament should have the opportunity to properly consider whether all the powers it has asked for are necessary – or whether the government should instead have included more detailed provisions in the bill itself. Even if Parliament agrees with the government that the powers in the bill are unavoidable, it could take a different view on the level of scrutiny that should be attached to them.  

For instance, should the sifting committees that already consider some Brexit-related secondary legislation also review secondary legislation made under new powers? Do some powers need to be subject to additional protections, like sunset clauses that turn them off after a certain period, or a requirement for ministers to provide greater justification for their use?  

Scrutiny of government powers should not be rushed through by a government in a hurry  

Given long-standing concerns about the weaknesses in current scrutiny of government powers, it is particularly important to get these difficult decisions right. MPs and peers should be able to draw on the expertise of both houses – including the House of Commons Procedure Committee, and House of Lords Constitution and Delegated Powers Committees, as well as views of external experts. All of this takes time and requires a constructive dialogue between Parliament and the government.  

Putting the Withdrawal Agreement into law was always going to be a legislative minefield, but the government should not ask Parliament to blindly trust that the powers it is asking for are necessary – and that the appropriate level of scrutiny is attached. Rushed law is rarely good law, and political expediency is no excuse for MPs and peers to sign off on provisions which they may later come to regret.  

Anyone who cares about parliamentary sovereignty and the balance of power between the government and Parliament should care about what the Withdrawal Agreement Bill doesn’t say, not just what it does.  

Comments

Joe, great article. The point about rushed law seems most prescient but may get lost in the noise of the public debates around parliament v the people and misplaced military metaphors. However, the ability to read in-between the lines of legislative text, especially such a complex bill, requires a great deal of experience that may elude all but the most avid professional parliament watchers. As a potential suggestion for a follow up - are there any more tangible examples or scenarios of where rushing this kind of legislation might lead? Perhaps touching on your points about citizens rights or the NI protocol. Appreciate this may stray into the risky business of peering into the future but the arguments I hear from government ministers and Leave supporters that we've already had three years to consider this and we just need to get it done because everyone is so frustrated rarely get countered with any practical arguments about how a failure to properly scrutinise legislation could be more harmful. Are there any illustrative parallels from the past that can be referenced?