Parliament Jets Off before Autumn Crunchtime
Another week in Brexit land is over. MPs have finally gone on recess and won’t be back until early September. Not that the final week of MPs sitting wasn’t eventful - the Government is stepping up its preparations for a no deal Brexit, Dominic Raab sat through a three-hour grilling session from the Commons Brexit Committee, and the Supreme Court case on the Scottish Parliament’s Brexit Bill began this week.
Also worth noting that the Government has put out a statement saying that UK organisations that secure funding through EU programmes, from now until the end of 2020, will be guaranteed by the UK government even in a no deal scenario.
If May does make it through the summer then there is the party conference season to get through before the October EU meeting. Increasingly this is now where the attention is focused. Will there be an agreement acceptable to all parties on Northern Ireland that avoids a hard border - acceptable not just to the EU but to the DUP and to the Tory sceptics? May is looking increasingly hemmed in with this as she relies on both for her continuation as PM and for the Tories to remain in Government. Read more in our paper “Scanning the Brexit Horizon: what to expect in the next nine months”.
White Paper on the Withdrawal Agreement Bill published
The Government published its White Paper on the Withdrawal Agreement Bill (originally referred to as the ‘Withdrawal Agreement and Implementation Bill’) this week. This will be the primary means of legislating for the Withdrawal Agreement reached with the EU.
Of particular interest is Chapter 5 which outline the parliamentary procedure for implementing the Withdrawal Agreement:
1) Parliamentary approval of the final deal - read here for how this will actually work in practice.
2) The Government will then introduce the Withdrawal Agreement Bill.
3) Before ratification, the procedures in the Constitutional Reform and Governance Act 2010 (CRAG) will apply. This means the Withdrawal Agreement will be laid before both Houses for a period of 21 sitting days. Provided that the treaty is not resolved against, the Government may proceed with ratification.
The White Paper commits to bringing forward separate legislation once an agreement on the future relationship is reached with the EU. The Government also promises to ‘continue to follow the established practices and conventions to seek the consent of the devolved legislatures where it is relevant to do so’. Only time will tell how that will pan out in practice. Some scepticism is granted given that the UK Government did, in fact, ignore Scotland’s decision to withhold legislative consent for the EU Withdrawal Act.
Scotland’s Brexit Bill Supreme Court case: The constitutional battle begins
A legal challenge launched by the UK Government against the Scottish Parliament’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill began this week. As a result of the ongoing dispute about post-Brexit powers and devolution, the Scottish Parliament passed their own bill in March 2018 (commonly referred to as the ‘continuity bill’). This is an alternative to Westminster’s EU Withdrawal Act which makes provisions for Scotland to transfer EU law into their own statue book. The crux of the legal challenge is whether this ‘continuity bill’ is within Scotland’s legislative competence.
On Tuesday and Wednesday, the Supreme Court judges heard arguments from both the UK Government and the Scottish Government. We’ll know who wins this constitutional battle in the autumn, which is when the Supreme Court will make its ruling.
UK law officer Lord Keen argued on behalf of the UK Government that the Scottish Continuity Bill and the EU Withdrawal Act produced two “dual but inconsistent regimes” in respect of retained EU law. He highlighted that there are parts of the Scottish bill which do not mirror the Withdrawal Act, such as incorporating the EU Charter of Fundamental Rights. He also argued that Holyrood’s Brexit bill is outside their legislative competence: “withdrawal from the EU is a matter for the UK Parliament and the devolved administrations do not have a parallel legislative competence in that area”.
In contrast, Scotland’s Lord Advocate James Wolffe insisted that the bill is within Holyrood’s competence because “it has effect only in the domestic legal order, it cannot affect the UK's negotiations with the EU. Those are matters entirely for the UK Government." In other words, not everything involving withdrawal from the EU is a reserved matter for international relations. He also added that if Westminster has the right to legislate for Brexit before withdrawal then Holyrood should be able to do the same. Judges also heard arguments from Wales and Northern Ireland who have made submissions as interested parties. Michael Fordham QC, Counsel General for Wales backed the Lord Advocate’s argument, saying that it was “an extravagant claim” to say that legislating for withdrawal from the EU is a reserved matter as UK law officers claim.
While the Supreme Court’s determination will be based on ‘strictly issues of law’, the ruling will have massive implications for where powers will reside post-Brexit. This is an issue that has proven highly contentious during the withdrawal process so far.
For more details of the court proceedings, see Philip Sim’s (BBC Scotland) coveragehere. Also worth reading is a new report by the Institute for Government which argues that Brexit requires all four governments of the UK to redefine their relationships once the UK leaves the EU.
Raab and Robbins give evidence to Brexit Committee
The last day before summer recess saw the new Brexit minister Dominic Raab, and the Prime Minister’s EU adviser Oliver Robbins, give evidence to the Commons Brexit Committee. This was a three-hour session in which members of the Committee demanded more detail and more clarity on the current state of the negotiations.
Aside from the fact that the is Government stockpiling food and technical notes are being prepared in the event of no deal, Dominic Raab could not say when businesses and individuals should start preparing for a no deal. Raab also said that rights for EU citizens will be secured substantially in UK law, enforcement mechanisms and an independent monitoring authority will be established.
There was nothing we haven’t heard before on the Irish Border issue. According to Olly Robbins and Dominic Raab all sides are “working to find a solution” while doing everything they can to “protect the integrity of the UK”. On questions about impact assessments and details about what a no deal scenario would mean for various sectors, the default answer from Raab was “I’ll have to check that and write back to the Committee”. It’s safe to say that the enquiries of the committee were not entirely satisfied