Legislating Brexit in 2018

Parliament’s only legislative role on Brexit before the General Election was to approve the Article 50 bill forced by the Miller case. But the scale of the task involved in legislating Brexit became clear in the Queen’s Speech, which confirmed that the EU Withdrawal Bill and seven other pieces of legislation would be introduced. And in November, the Government conceded the need for an additional Withdrawal Agreement and Implementation Bill.

Yet the Government appears to be behind its original schedule:

• The Withdrawal Bill just passed Commons committee stage, but the Government has accepted an amendment on a scrutiny mechanism for secondary legislation and to think again the scope of delegated powers.
• The Nuclear Safeguards Bill and the Sanctions and Anti-Money Laundering Bill are the only bills to get beyond first reading.
• The Trade and Customs bills appeared within days of the consultation closing.
• We are still waiting for white papers on agriculture, fisheries and migration.

Where are we going?

Withdrawal Bill

The Government will face a rough ride when the Withdrawal Bill heads to the House of Lords. Lords debates are not programmed in the same way as those in the Commons, so there could be some very long nights in a place where the Government has no majority – with a lot of knowledgeable peers ready to pounce. Defeat at committee stage is likely to embolden the Lords to introduce more amendments because there is a realistic prospect that Lords amendments will be agreed by the Commons.

The Government will hope to get Royal Assent by the summer, so it can use the powers to bring forward the mass of secondary legislation needed. The white paper estimates that between 800 and 1,000 statutory instruments will be needed to ensure that UK laws operate effectively after exit. The later the bill gets Royal Assent, the less time ministers will have to make these changes.  

Customs and Trade

There will be second readings of the Taxation (Cross-Border Trade) Bill – the customs bill – on 8 January and the Trade Bill on 9 January. The Trade bill does not address the role Parliament will have in agreeing future trade agreements; this is likely to be an area of concern. Because the customs bill deals with taxation, the role of the Lords in its scrutiny will be limited. Once amendments are tabled after second reading, we will be able to identify possible obstacles for the Government.

Fisheries and Agriculture

Michael Gove promised a fisheries white paper before Christmas and an agriculture white paper early in the new year. This timetable has clearly slipped and Cabinet still appears to be unsure whether we will stay in the Common Agricultural Policy and Common Fisheries Policy during transition.

Given the importance of these issues both to the devolved administrations and to external interests, the more the Government can do to agree a way forward in advance, the better the chances of a smooth passage.

Migration

The other big outstanding issue is migration, on which the timetable has again moved sharply to the right.

A white paper was originally promised for this summer, then autumn – now 2018. Once it does appear, it is unlikely to establish the UK’s post-Brexit migration regime, decisions on which will need to wait for the report of the Migration Advisory Committee (not due until later in the year). Both the bill and white paper are likely to focus on ‘settled status’ and the process for registering EU nationals.

Legislating for the withdrawal agreement

The IfG has argued that the Government should implement a withdrawal agreement through primary legislation, to fulfil its commitments to the EU to entrench citizen’s rights. To head off similar amendments, the Government announced it would introduce such a bill.

This puts still more pressure on an already tight legislative timetable. If the Withdrawal Bill is amended to prevent ministers using delegated powers to implement withdrawal until the bill is passed, the Government will face even more of a challenge in ensuring that the UK statute book is ready for exit day. 

What have we learned?

Managing a legislative programme with a minority government is hard

The Government’s handling of Parliament in relation to Brexit has been poor. Despite the confidence and supply agreement with the Democratic Unionist Party (DUP), the Withdrawal Bill has been vulnerable to Conservative backbench amendments with the Government offering final concessions too late to avoid defeat. The Prime Minister made her own life harder by reshuffling her Chief Whip, a critical role in a minority government.

Involving Parliament at an early stage is vital

Earlier this year, we argued that involving Parliament at an early stage in the legislative process is vital in ensuring that MPs can undertake well-informed scrutiny. The Government has produced white papers for most of the legislation introduced so far, although the timeframe has become more compressed and they have not been very detailed.

The problem with the Government’s approach is evident in the large number of amendments tabled to the Withdrawal Bill – 405 amendments and 85 new clauses – as well as the time spent between second reading and committee stage in negotiation with backbenchers. The bill may have progressed more smoothly if the Government had engaged more openly with Parliament at an earlier stage.

Engagement with the devolved administrations matters

The first ministers of Scotland and Wales denounced the Withdrawal Bill as a “power-grab” and recommended that the Scottish Parliament and Welsh Assembly refuse to give legislative consent to the bill. The Government has acknowledged that certain clauses in the trade bill will require consent from the devolved legislatures, as will the bills on agriculture and fisheries.

Between the referendum and the election, the Commons spent 150 hours debating Brexit in the Chamber and Westminster Hall with even more time being devoted to Brexit in the Committee corridors. Parliament will need to spend even more time on Brexit in 2018, although the pressure may be eased if the EU agrees to a period of transition. This is unlikely to be confirmed until the autumn and in the meantime, a Conservative leadership election or another General Election could make an already heroic timetable impossible.