Brexit bill's unpalatable mix offers ammunition to hardline UK lawmakers

24 April 2019 12:08pm

27 July 2018. By Matthew Holehouse.

For British lawmakers struggling to digest the Brexit strategy that Prime Minister Theresa May has cooked up, legislation planned for the end of this year could offer an altogether spicier taste sensation.

On Tuesday the UK government outlined its proposals for the EU (Withdrawal Agreement) Bill, a piece of legislation to enshrine the divorce agreement and transition period in domestic law.

Little attention has been paid to the proposed bill in Westminster since its planned release was first announced last December. And now the policy paper has been released amid a slew of other major Brexit announcements, including the headline news that May had formally taken the lead in negotiations.

Put simply, assuming the UK does not secure an extension of the Article 50 process, then it will exit the bloc without a deal unless the bill is on the statute book before March 30 next year. A series of hurdles await.

The bill will be introduced to Parliament if lawmakers in the House of Commons, the UK’s lower elected chamber, vote to approve the terms of the divorce agreement in a resolution.

The bill will then go through the normal legislative process. Once it becomes law, the divorce agreement is presented to lawmakers another time for ratification in accordance with UK constitutional rules.

The legislation will make difficult reading for lawmakers in the UK’s fragmented parliament. It's an extraordinary piece of legislation that — in order to deliver what the UK government has already signed off — needs to replicate many distinct legal concepts of EU membership in perpetuity. Many of its provisions have significance for the constitutional relationship between the UK and EU orders after Brexit.

As such, lawmakers will likely use it as a pawn to force May to change course on her overall Brexit strategy — and in particular, to jettison her goal of remaining in the single market for goods and a de facto customs union.

Replicating EU law

The bill covers the withdrawal agreement being negotiated currently in Brussels, including citizens’ rights, the UK’s financial liabilities and a host of exit issues such as ongoing court cases and data transfers. It will also cover the “backstop” protocol on Northern Ireland, although since this is still under negotiation, the policy paper does not address this.

On citizens’ rights, this week's policy paper sets out, the bill will need to mimic the unique characteristics of EU law, whereby the bloc’s legislation automatically applies within the UK without further adoption by Parliament.

For example, on the rules governing pensions of EU citizens in Britain, the bill will need to make EU welfare rules “directly applicable” inside the UK, so that these regulations have the same legal effect in the UK as they do for member states, for the purposes of the withdrawal agreement.

In addition, the UK has agreed to replicate the EU-law concepts of supremacy and direct effect with regards to citizens’ rights. That is, the EU (Withdrawal Agreement) Bill will take precedence in court decisions over any subsequent piece of UK legislation that would contradict it. And EU citizens will be able to rely on the rights granted by the Withdrawal Agreement when appearing before a judge.

The policy paper also proposes introducing a “lock” via the bill so that lawmakers will need to “activate an additional procedural step” before they can repeal primary legislation covering citizens’ rights. The bill will also create a watchdog with powers analogous to the European Commission to supervise whether the agreement is being upheld.

Implementation period

Equally eye-catching is the mechanism for introducing a 21-month transition period, extending the UK’s membership of the single market and customs union to the end of December 2020.

During this period, the UK will need to remain bound by the decisions of the EU Court of Justice and the full range of EU legislation, including any new pieces of law.

Under the EU (Withdrawal) Act, which Parliament has already passed, the legislation that currently links the UK and EU legal orders — the 1972 European Communities Act — is to be repealed on Brexit day, March 29 next year.

In order to deliver the implementation period, this second bill proposes amending the EU (Withdrawal) Act. It will introduce a provision to extend the effects of the European Communities Act for another 21 months beyond its repeal. In effect, while the UK will have formally left the bloc, the UK statute book will carry on as if the divorce never took place.

A rocky road

Euroskeptic lawmakers are aware of the complex and fragile nature of the bill, and how small amendments could skewer the entire negotiation and transition period.

For many, repealing the 1972 act and ending EU principles of supremacy were the whole point of the Brexit project. For them, a smooth exit or the security of EU citizens are secondary concerns.

When Brexit secretary Dominic Raab unveiled the bill in Parliament on Tuesday, his party’s lawmakers made clear they would exploit this discomfort to force a change of direction.

“We swallowed the fairly hideous implementation period compromise on the promise of a smooth transition to a good end-state,” said lawmaker Craig Mackinlay. “Now that the opening offer on the end state does not pass the public’s sniff test, why should we approve both when we are asked to in the autumn?”

Much will depend on whether the opposition Labour Party chooses to save, or sink, the government. A painful confrontation awaits.

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