Withdrawal symptoms: Will the Government withdraw the EU (Withdrawal) Bill?

The other night, I had one of those strange but strangely realistic dreams that it is hard to shake off upon waking. I dreamt that I had been sentenced to five weeks in prison, for putting too many ticks on the (complex) ballot paper for the People’s Vote on the EU Withdrawal Agreement. The court had left it to me to arrange the serving of my prison sentence and, after waking in some distress, I had spent five minutes worrying about how to ask my boss for five weeks off work – before belatedly realising it was all just a dream.

After 18 months slaving away over the EU (Notification of Withdrawal) Act 2017 and the EU (Withdrawal) Bill, which recently completed its rather bumpy passage through the House of Lords, I often wish that Brexit and all its attendant strangeness was also just a dream. Sadly, it is all too real, even if most public and parliamentary debate on the subject leaves me wondering whether I should have eaten all that cheese just before bedtime. Apparently, it’s perfectly normal, having decided to resign your membership of a club, to expect the club to then agree to change its rules so that you can continue to enjoy all the benefits of membership. Educated people still take you seriously when you call that “a jobs-first Brexit”.

Yes, Brexit is a nightmare, and we have all fallen a long, long way down the rabbit hole. The normal rules do not apply, nothing is predictable, and everything is possible, even if Michel Barnier tells you a hundred times that it really, really isn’t. Forty years of law-making can be unpicked with a Great Repeal Bill, a trade deal with the EU27 can be negotiated in weeks, and the magic money tree will cover the cost of umpteen new regulatory agencies to do the jobs of all the EU agencies that no one thought to mention during the 2016 Referendum campaign.

So, earlier this month, hardly anyone batted an eyelid when the mainstream media began to report rumours that had been circulating in Westminster for weeks: that the Government might not bring the EU (Withdrawal) Bill, and its 15 inconvenient Lords amendments, back to the Commons until after the summer recess. There’s no rush, David Davis knows what he’s doing, everything will be fine.

Conversely, just a few weeks later, on 23 May, pretty much everyone peed their pants with excitement when the political editor of Sky News, Faisal Islam, tweeted that Tory MPs had been told that Ministers would be bringing the Bill, as well as the long-stalled Trade and Customs bills, back to the Commons in mid-June.

That may or may not happen – at Business Questions in the Commons the following day, all Andrea Leadsom, the Leader of the House, would say is that she expects all three Brexit-related bills to make “swift progress in a matter of weeks, not months”. For sure, nothing will happen before Monday 11 June.

However, what is clear is that the Government no longer needs the EU (Withdrawal) Bill. Because there is no power or provision in the Bill that ministers need to have before they can give themselves the same (or refined) powers and provisions through the promised (and necessary) Withdrawal Agreement & Implementation Bill (the WAI Bill), which – assuming things stay on the Government’s intended track – we can expect to see very soon after the final Withdrawal Agreement is signed off by the UK and the EU27 at the October Council meeting. And the WAI Bill will need to pass through Parliament fairly quickly, as by definition it needs to reach the Statute Book some time before Exit Day (which may or may not be 29 March 2019, of course).

Most of the EU (Withdrawal) Bill’s provisions would only come into play on or after Exit Day. And the key exception – clause 12’s powers for ministers to issue secondary legislation “appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day” – could simply go in the WAI Bill. Indeed, use of the powers in clause 12 is explicitly subject to “the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the UK from the EU” – that is, the WAI Bill.

With a stand-still transition until December 2020, and the postponement of negotiations on the future relationship with the EU27 until after Exit Day, there is no longer any evident need for ministers to have such powers much before Exit Day. At the time of the EU (Withdrawal) Bill’s introduction, everyone assumed that Parliament would spend most of this year awash in hundreds of draft Statutory Instruments (draft secondary legislation) issued under the Bill’s sweeping Henry VIII powers, and making the necessary legal changes to implement the future relationship from Exit Day.

That was always fanciful, of course, given how many years it took to negotiate e.g. the EU-Canada free trade agreement (CETA), but pretty much everyone swallowed it. However, there will be no need to make such legal changes to implement the non-binding (and quite possibly somewhat vague) ‘political declaration’ on the future relationship that will accompany the Withdrawal Agreement. There are only four months left to negotiate and agree the content and final wording of the political declaration. And, if the UK negotiating team’s latest proposals, published on 24 May, are anything to go by, discussions on the declaration haven’t got much further than proposals for some subject headings. So it’s hard to see the text being terribly definitive by October.

And, of course, withdrawal of the EU (Withdrawal) Bill would remove all risk of losing Commons votes on the 15 inconvenient Lords amendments. [Addendum, 3 June: As Andrew Rawnsley says in today’s Observer, “looming parliamentary votes on Brexit could detonate the Tory party and put [May’s] premiership in jeopardy.”]

On the other hand, the fact that ministers no longer need the Bill does not mean that they will withdraw it – at least, not yet. As already noted, in the dream world of Brexit, everything is possible, however irrational, and nothing is predictable. Ministers may well decide, for purely political reasons, to bring the Bill back to the Commons for Ping Pong, if only to try to bounce the Cabinet brexiteers over the Customs Union issue, and/or exploit Labour’s own internal divisions on the Customs Union and EEA, and/or just keep MPs on both sides of the Brexit divide fully occupied. And, if ministers fail to reverse or water-down the Lords amendments, they can always just abandon the Bill later. Even if the Bill did reach the Statute Book, with or without the Lords amendments, the WAI Bill could include a simple clause repealing it in its entirety, just as clause 1 of the Bill repeals the European Community Act 1972.

But by then, I imagine I’ll be having Brexit-related nightmares every night.

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About wonkypolicywonk

@wonkypolicywonk is a policy minion who has been lucky enough to work at Maternity Action, Working Families, Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK. He currently bangs his head on a desk in Parliament.
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