Top 3 developments
The Great Rebel Bill?
The Government has today published a white paper on the Great Repeal Bill. Although a draft of the bill itself was not published, the consultation paper sets out in detail the Government’s plans for transferring EU legislation onto domestic statute books.
Trigger Happy TM
Yesterday afternoon the UK’s permanent representative to Europe, Sir Tim Barrow, handed a letter to President of the European Council Donald Tusk notifying the EU that the UK is leaving.
Theresa Goes to Holyrood
Theresa May met SNP leader Nicola Sturgeon on Tuesday during a visit to Scotland. The meeting lasted about an hour, in which the two leaders discussed Brexit and Scottish independence.
The Great Rebel Bill?
Today’s White Paper explains how the Government intends to legislate for Brexit by introducing a Great Repeal Bill at the start of the next parliamentary session. The bill has three main functions:
- firstly, it will repeal the European Communities Act,
- secondly, it will convert EU law into UK law,
- thirdly, it will give ministers new powers to correct laws which “do not operate appropriately”.
The European Communities Act 1972 is the legislative provision which incorporates EU law into British domestic law. The bill’s primary function is to transfer 40 years-worth of EU legislation directly into British law. This is necessary to prevent a legal ‘black hole’ in British statute books, and allows future Governments to amend legislation as and when it is necessary in the future. In instances where a conflict arises between EU-derived law and new primary legislation passed by Parliament post-Brexit, newer legislation will take precedence over the EU-derived law – thereby bringing an end to the supremacy of EU law. However, in order to correct anomalous legislation which is operating inappropriately, the bill will give ministers new powers. These so-called ‘Henry VIII powers’ will include provisions “to transfer to UK bodies or minister’s powers that are contained in EU-derived law and which are currently exercised by EU bodies”. The paper admits that this gives ministers sweeping powers in terms of the scope of legislation which can be altered without Parliamentary scrutiny.
Overnight the Brexit department issued a briefing confirming that up to 1,000 new statutory instruments will need to be passed in order for the UK to leave the Union. The briefing reads “the corrections to EU law now required are estimated to need between 800 and 1,000 statutory instruments”. Ministers therefore have the power to affect a lot of legislation without Parliamentary scrutiny. Indeed, the House of Lords last annulled a statutory instrument in 2000 whilst the Commons last did in 1979. In an attempt to allay concerns that the Government is seeking to circumvent Parliamentary, Davis said the powers would be time-limited. This appears not to have satisfied Geena Miller who, speaking on BBC Radio 5 Live, has hinted at a fresh legal challenge to May’s Brexit plans. Miller said, “if there is any sniff that they are trying to use Henry VIII powers, that would be profoundly unparliamentary and democratic, and I would seek legal advice, because what you are doing is setting a precedent that Government could bypass Parliament”.
The Great Repeal Bill would also end the Court of Justice of the EU’s jurisdiction over the UK. There will be no future role for the CJEU in the interpretation of future laws and domestic courts would no longer have to consider the CJEU’s jurisprudence. However, British Courts will continue to accept case law of the ECJ.
Answering questions on the single market in the Commons, Davis said “depending on what the policy decision is, I would think it was quite likely to come before parliament” – meaning both Houses of Parliament could potentially get a vote on whether the UK leaves the EEA.
Finally, the paper says that in areas where the devolved administrations and legislatures have competence, they are responsible for implementing the common policy frameworks set by the EU, meaning there could be a significant shift in powers to the devolved administration as they replace EU laws.
The provisional timetable for the bill’s passage through Parliament is as follows:
- Bill introduced early in the 2017/18 session following its announcement in the Queen’s Speech (due May 17th).
- Second reading and submitted to Bill Committee before the summer recess.
- Committee stages in September 2017 and possibly following the conference recess.
- Lords stages during the remainder of 2017 – subject to ping pong.
- Royal Assent in early 2018.
May Minds Her Language
The language the letter used perhaps signalled a conciliatory approach towards future negotiations – at least from the outset. Contrary to May’s mantra “no deal is better than a bad deal”, the letter expressly warns against a no-deal situation, saying that such an arrangement “is not the outcome that either side should seek. We must therefore work hard to avoid that outcome”. In a corresponding statement to the Commons, the Prime Minister said “there is no turning back”, but continued the conciliatory and constructive tone of her letter. She stressed the importance of European values, and said the UK would work with the EU “constructively in a spirit of sincere cooperation”. Reacting to her speech, the SNP’s Westminster leader, Angus Robertson, said the Prime Minister had “broken her promise” to secure a UK-wide agreement before triggering Article 50, and that a failure to “respect the differences” across the nations of the UK has made Scottish independence “inevitable”. Meanwhile, Donald Tusk said the Union remains “more united” than ever, and that it now has a strong mandate to protect the interests of the remaining 27 member states. He added, somewhat touchingly, “we already miss you”.
London and Holyrood at Loggerheads
Taking place ahead of May triggering Article 50 on Wednesday, the meeting between May and Sturgeon was intended to symbolise that the Government values Scottish input in the Brexit process, and that London is listening to Holyrood. Sturgeon said the talks were cordial, but she remains “frustrated by a process that appears not to be listening”. Following the meeting the Scottish Parliament backed Sturgeon’s call for a second independence referendum, as MSPs voted by 69 to 59 in favour of seeking permission for a referendum before the UK leaves the EU. In spite of the Parliament’s vote, the British Government remains adamant that any call for a referendum will be blocked until the Brexit process is complete, in line with Theresa May’s repeated assertion that “now is not the time for a referendum”.
We’re Keeping EUR Regulators
The UK is likely to remain under the jurisdiction of some EU regulatory bodies post-Brexit. The admission comes as Theresa May has to face the reality that her Government does not have the time, expertise, or legislative capacity to replace every European regulatory body with a brand new British one within the two-year time frame set out by Article 50. The CBI has estimated that Britain may need to set up domestic versions of as many as 34 EU regulatory agencies. Gas and electricity trading, road haulage, aviation carrier licensing and broadcasting are amongst the particularly heavily-regulated policy areas identified in David Davis’s Brexit white paper published last month. These areas are most likely to require a transition period affording the Government more time to create its own regulatory bodies – thereby increasing the pressure on the Prime Minister to secure an extension or negotiated deal.
Instant Starmer’s Gonna Get EU
The Shadow Brexit Secretary, Sir Keir Starmer, has said that Labour will reject any Brexit deal which does not meet “six tests”. Most notably, he quoted David Davis’s promise in January to agree a deal which offers businesses “the exact same benefits” they currently receive as members of the single market. Speaking at Chatham House on Monday, he also warned Theresa May to “face down” pro-Leave Tories in order to avoid a cliff edge Brexit, and said she should drop her suggestion that “no deal is better than a bad deal”. Starmer’s speech comes amidst a seemingly endless display of disagreement among the Labour ranks. His remarks were intended, to leave behind the Party’s internal wrangling over how to tackle Brexit, and present a united front focused on holding the Government to account.
Barnier’s Three-Step Negotiations
Michel Barnier, the EU’s chief negotiator, has said the Brexit negotiations will take a three-phase approach. The first phase involves separating current arrangements (the so-called ‘divorce talks’), the second will make arrangements for a future relationship, and the third will make provision for transitions arrangements in order to avoid unnecessary disruption. Barnier’s vision for the negotiations comes as a rebuttal to May’s demand that divorce talks and discussions of future arrangements be conducted simultaneously. Writing in the Financial Times, Barnier reiterated “the sooner we agree on these principles, the more time we will have to discuss our future partnership”. Barnier’s approach appears to have widespread support across Europe, with German Chancellor Angela Merkel saying on Wednesday, “Only when the relevant questions [on the UK’s rights and obligations] are clarified can we subsequently — but hopefully soon — talk about our future relationship”.
Don’t Be That Guy, says Verhofstadt
The European Parliament’s Brexit leader, Guy Verhofstadt, has accused Theresa May of using the UK’s security and counter-terrorism capability to blackmail the European Union in her Article 50 letter. The passage in question reads, “in security terms, a failure to reach agreement would mean our cooperation in the fight against crime and terrorism would be weakened”. Verhofstadt defiantly claimed MEPs would not allow the UK to use its security capabilities as a bargaining chip in the negotiations. He said, “I think the security of our citizens is far too important to start a trade-off. Both are absolutely necessary in the future partnership without bargaining this one against the other”. The letter has sparked similar controversy on this side of the Channel, with critics in Westminster, including Liberal Democrat leader Tim Farron, saying the Prime Minister’s remarks amount to “a blatant threat”. Speaking on BBC Radio 4’s Today programme this morning, David Davis out rightly denied the allegations, saying “this is not threat”.
- 31st March – Donald Tusk to have presented draft guidelines to the EU-27.
- 23rd April – First Round of French Presidential Elections.
- 29th April – EU Brexit Summit.