Very few people dispute the need for the European Union (Withdrawal) Bill. That a significant piece of legislation is required to stop the process of EU law taking precedence over the UK Parliament, and to bring EU laws onto the UK statute book to provide continuity in the short-medium term, there is no argument. No feasible alternative has been offered.
But, while essential, the legislation is hugely controversial. The powers it awards to Ministers has caused cross-party uproar, despite the general acceptance that much of it is necessary. How can the Government balance the need to appease with the need to enact the contentious and intrusive powers it needs to govern effectively? How can it walk the tightrope to achieve what it needs to do?
On the face of it, the Bill has four main purposes: repeal the European Communities Act 1972; ensure the retention of existing EU law; introduce measures dealing with devolution; and ensure powers are made available in connection with the withdrawal. It is only the latter that is provoking outrage, as the Bill awards Ministers Henry VIII powers that allow them to act almost autonomously from Parliament. But what do these powers propose and how will the Government ensure they are granted?
We can all acknowledge that the task of translating, transferring and transcribing the entire EU aquis is vast. The EU’s Eur-lex database lists a mixture of over 19,000 EU laws that are in force, including directives, regulations, resolutions, guidelines, communications, and a range of other instruments; 12,000 of these are in force in the UK and will need to be adopted. But a simple copy and paste job will not be sufficient. For many of the various instruments to work properly after Brexit, “technical changes” will be necessary. These will not always be complex, many will be as simple as replacing the name of an EU institution with a UK one, but the Department for Exiting the EU has estimated that 800 to 1,000 separate statutory instruments will need to be quickly introduced after the Bill has become law. It is specifically clause 7 – dealing with deficiencies arising from withdrawal – that delegates the power to Ministers to bring about these changes to the primary Act.
These are not the only Henry VIII powers included within the Bill but they are perhaps the least controversial of those proposed. Clauses 9 and 17 are where the real trouble is stored. Clause 9 enables Ministers to implement the withdrawal agreement, essentially giving the Government the authority to implement arrangements on a variety of contentious issues – such as a transition and the rights of EU nationals – with minimal scrutiny. And clause 17, well, that goes a lot further in providing that “A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”. What this means in reality is that if a minister can somehow link an issue to Brexit (not hard), they can argue there is cause to make changes to Acts of Parliament currently in existence. Any of them.
The three clauses listed above all provide for the delegation of vast powers to Ministers but of the three, only one – clause 7 – seems to be vital. The time limited controls (permitted for two years from exit day) listed within it grant correcting powers that ensure the UK can operate effectively on its own. Yes, they are far reaching, in that Ministers will be able to amend, repeal or replace retained EU law, but if there is to be a smooth Brexit the Government will need the flexibility to legislate at speed. Clause 7 is, therefore, key to the whole process of leaving the EU. Without it, a disorderly Brexit becomes more likely.
Clauses 9 and 17 are more controversial and the focus of greater distaste, but are ultimately less essential for Brexit. The Government can offer concessions here to protect the more precious clause 7. For example, simple changes that provide for greater parliamentary scrutiny (by making it entirely subject to the affirmative procedure), or which remove the need for ministers to have sole jurisdiction over the implementation or modification of the withdrawal agreement, would release the pressure. The Hansard Solution has proposed a three-part solution that would involve the creation of a “sift and scrutiny” Committee in the Commons that selects measures of concern for debate and vote. These could also allow the Government to give ground by softening some of the most extreme proposals.
Should clauses 9 and 17 have been absent from the initial Bill, it is likely that clause 7 would be taking the brunt of the antipathy we are currently witnessing – potentially placing one of the most crucial aspects of the legislation at threat. By adding clauses 9 and 17, the Government has created ready made concessions; sacrificial lambs whose power can be diminished – or possibly even abandoned – at a later date. Whether this will happen during the Common’s Committee stages or in the Lords depends on the political wind – the Government will want to leave any climb down until the last possible moment – but nonetheless, it seems unfeasible that these powers, as currently written, will be contained within the final Act because it was never the Government’s true intention.