So, it’s finally arrived – David Davis’ opening bid as to the nature of the UK’s relationship with the European Union following ‘Brexit-day’ in March, 2019, in the form of the European Union (Withdrawal) Bill. Perhaps predictably, it has already set the cat-amongst-the-pigeons, especially with regards to the devolved administrations. The primary goal of the Bill is to create continuity of EU law, following Brexit, so as to best preserve existing European law by its transposition into the UK statute book. This is to preserve existing rights enjoyed by British citizens and to ensure continuity of regulations to create certainty for employers and businesses.
All seems simple enough, right? However, opposition to the bill comes to from two-fronts: general opposition concerned by the ‘sweeping’ powers granted to ministers under the so-called Henry VIII Powers under the Statute of Proclamations 1539, to ensure the continuing operation of the ‘transposed’ law without the scrutiny of Parliament; and the devolved administrations in Scotland, Wales and Northern Ireland, who are presently tasked with the administration of laws in areas around the environment and consumer rights, stemming from EU law, will instead see the determination of this returned to government ministers in Whitehall.
This begs the question, however, ‘should we be worried?’ The primary sound-bite in the course of the ‘Vote Leave’ campaign was ‘Take back control.’ However, I, like many of those who watched the campaign, presumed this to mean the return of powers to Westminster and not ministers in Whitehall. Professor Mark Elliott of Cambridge University has observed this proposal as “a massive transfer of legislative competence”. In fairness to the government, they are rightly concerned about the constraints of time – the UK, to ensure certainty and prevent the ‘cliff-edge’ outcome, needs a full-functioning legal frame-work to be in place on its day of exit from the EU. Parliamentary debate on the thousands of measures that may require amendment would be a hugely time-consuming process and will easily outstrip the amount of time the government presently has.
However, there are some clear safeguards present in the bill: s7) ss6) prevents ministers from being able to increase taxation, create criminal offences, make any amendment to the Human Rights Act, 1998 or any retroactive amendments. These are key elements that ensure a base line of protection for the citizen against state power. Indeed, only an orchestrated government response by bringing further legislation to Parliament would be able to encroach on these areas. Considering the Conservative Party’s unenviable position at present, to do so would be fool-hardy, to say the least. Whether they go far enough, is another question.
Another criticism of the bill’s present form comes from none-other than Leader of the Opposition, Jeremy Corbyn MP, who has expressed concern about UKs withdrawal from the EU’s Charter on Fundamental Rights. This writer can’t help but wonder if Mr Corbyn has confused this document with another of the multitude of ‘rights-protecting documents’ that create overarching protections for the citizen. Most specifically, the European Convention on Human Rights (ECHR) and its incarnation in UK law, the Human Rights Act 1998 (HRA), that has already being provided for in the proposed bill. Granted, the Charter’s remit it somewhat ‘wider’ than the ECHR and the HRA in terms of the rights it purports to protect, but it has repeatedly proven to be an example of political-statement by the EU (despite its inclusion within the Treaty documents underpinning the EU), informing the debate between the European Commission, Council and Parliament and passage of law in furtherance of the single-market agenda that is at the core of the EU. As the debate around the UKs eventual relationship with the Europe, following Brexit, has rumbled on, it has become increasingly clear that the UK will be leaving the single-market to ensure controls over immigration are returned to UK law-makers. As such, the inclusion of the European Charter on Fundamental Rights would almost certainly prove unnecessary, burdensome and entirely defeat the prospect of an effective Brexit.
With regards to the devolved administrations, the respective first-ministers of Scotland and Wales, Nicola Sturgeon and Carwyn Jones, have been quick to accuse the UK government of a ‘blatant power grab’. Some have gone further to predict a “constitutional-crisis” for the UK should the bill, its present form, pass successfully through Parliament. This reasoning is premised on what is known as the Sewell Convention which determines that Parliament should first seek agreement from the devolved administrations in Wales, Scotland or Northern Ireland, before seeking to pass law on any particular area granted to one of those administrations. Despite the inclusion of this convention in statute, it remains one of politics and may be overturned, as was made clear by the Supreme Court in the course of the Miller litigation regarding the competence of the UK government to trigger Art. 50. Despite the government’s loss in that case, the court sought to emphasise that central government could not legally obtain the consent of devolved administrations. This may be so, but if the government was to proceed without at least some consideration-for or concessions-to the devolved administrations, phenomenon such as a further referendum on Scottish independence could easily rear their heads, once more. For the sake of the UK as a union, it is advisable for the government to tread carefully in this area.
Perhaps unsurprisingly, the balance to be found is one between speed and efficiency, and parliamentary oversight with the input of Scotland, Wales and Norther Ireland. The powers, indeed, do appear sweeping, but the government has included some reassuring ‘red-lines’ as the competences granted, the question as to whether they are palatable to the rest of us will now be thrashed-out in the House of Commons. The removal of our inclusion within the European Charter, however, is most certainly a sensible development despite Jeremy Corbyn’s reservations. With regards to devolution, however, David Davis has sought to stress this is an ‘opening bid’ and that the consent of individual nations within the UK will be sought. Moreover, tabling this bill immediately before the summer-recess, so that MPs may go away, digest and consult as to the bill’s ramifications is also sensible. It being illustrative of the government recognising its own position and working collaboratively so as to ‘get Brexit right’.
Following a period of such devision, this is arguably the correct approach – so long as ideology gives way to practicality, and the terms of Brexit are settled before the day of our exit from the EU, there is hope that this will provide a foundation of consensus going forward outside of the European Union.