Why the government needs to publish the Withdrawal Agreement Bill in draft now
As unlikely as it looks at the moment, if Parliament agrees to the Brexit deal, the government would then have to bring forward primary legislation to give effect to it in domestic law- that would be the Withdrawal Agreement Bill. The bill will contain provisions that are likely to be highly contentious politically and constitutionally. This blog will look at what this piece of legislation is likely to contain and why it is crucial that Parliament and civil society sees its provisions as soon as possible.
The Withdrawal Agreement Bill has a range of purposes. Centrally, it will contain necessary implementing provisions in key areas of the Withdrawal Agreement, those are:
The continued primacy of EU law and courts during the transition period (which lasts from 29 March 2019 and 31 December 2020)
Entrenchment of EU citizens’ rights so they cannot be repealed by future parliaments
The financial settlement the UK will make as well as budget contributions during the transition period
The Protocol on special arrangements for Ireland and Northern Ireland (i.e. the ‘backstop’ proposal for the border).
This legislation has to be passed by the 29th of March 2019. The government cannot ratify the Brexit deal without this piece of legislation being passed. That means even if parliament signs off the deal, it cannot be ratified if this legislation has not passed by the 29 March. When the government introduced the landmark Brexit legislation, the EU Withdrawal Act - which in simple terms copy EU law onto our domestic statute book and repeals the European Communities Act 1972 - Parliament spent over 11 months scrutinising it. Parliament now has less than 40 days to scrutinise a bill that will carry significant constitutional weight and is likely to attract fierce debate in Parliament. What’s most troubling is that the bill has still not been published.
Back in July, the government published a White Paper on the Withdrawal Agreement Bill which raises more questions than it answers.
For instance, one key operation of the bill will be to enshrine the rights of EU citizens living in the UK. What is not clear, however, is how citizens’ rights in the Withdrawal Agreement will be protected from repeal by future parliaments? Remember that as parliamentary sovereignty is a key pillar of the UK’s uncodified constitution, no Act of Parliament can bind future parliaments. Yet, this is exactly what the Withdrawal Agreement Bill needs to do - bind future parliaments to honour the Withdrawal Deal. The government has not given any clarifications on how it proposes to solve this dilemma. The White Paper merely states that the government plans to introduce ‘an additional procedural step’ to make it harder for future parliaments to repeal citizens’ rights as well as the other provisions in the Withdrawal Agreement.
We are less than 40 days before exit day and parliamentarians and civil society has no idea of how the government plans to entrench citizens’ rights (which has never been done before).
There are other issues that the White Paper fails to clarify: how are the courts supposed to give special status to the citizens’ rights?; how will the Withdrawal Agreement Bill implement the ‘backstop’?; how are commitments on equal treatment for EU citizens going to be delivered?; what sort of redress and remedies will be available to EU citizens if the Withdrawal Agreement is breached?; and will the government confer broad lawmaking powers to ministers (as they have done in virtually every piece of Brexit legislation)?
There are serious questions to be raised of the government as to why they haven’t yet published the Withdrawal Agreement Bill, at least in parts or in draft. The government has done this with other pieces of Brexit legislation, for instance, a draft of the Environment (Principles and Governance) Bill was published in December 2018. It has yet to start its parliamentary passage, but since the draft publication of the Bill, civil society, environmental groups and parliamentarians had a chance to scrutinise it. So we know that when the will is there, the government can put in place measures to allow scrutiny in advance of a bill being introduced to Parliament.
The government has so far justified the reason for not publishing the Withdrawal Agreement on the basis that there are still issues left to resolve, both with the EU and with Parliament. Mainly what needs to be resolved is, of course, the ‘backstop’ provisions in the Agreement. So why can’t the government publish draft provisions on the constitutional status of the Bill? Why can’t they publish the ‘additional procedural step’ that is meant to protect citizens’ rights from future repeal (remember that this part of the Brexit deal has already been agreed)?
We remain concerned that the government will fast-track the Withdrawal Agreement Bill through Parliament at the end of March, using the argument that Parliament has already agreed to the Withdrawal Agreement in principle, and so there is no need to seek further amendments or clarifications to the bill. This is simply not the case, as highlighted with the numerous issues raised above - the bill will inevitably contain question of a serious constitutional nature that must receive the robust scrutiny it is due. The White Paper fails to answer a range of questions, from the bill’s constitutional status to how citizens’ rights will be properly protected. It is imperative that this bill is published in draft as soon as possible.