The European Union (withdrawal) Bill 2:- Power grab?

In the first article looking at the European Union Withdrawal Bill, we set out the principle behind it but pointed out that it was impossible for EU regulations and directives to be transferred verbatim onto out statute books. As an example, we used one of the shortest and indeed, most pointless of all Regulations,  the so-called “Cuddly Toy Sheep” Regulation 1462/2006.

The object of this regulation is pretty simple  – that the toy in question may be given the appropriate  classification code for customs purposes. If we were to use the same codes on Brexit and use similar customs checking processes, transposition of this law into domestic law ought to be pretty simple. We remove all references to the Commission, the Treaties and references to Member states, extract the important bits, find a new template, perhaps even using the relevant bits of a piece of pre-1973 legislation, change a few words here and there and Bob’s your uncle! All done.

Actually, no. The Regulation we have been using as an example cross-references another Regulation 2913/92. This reference will have to be changed. Then the regulation which is cross-referenced talks about the Community Customs Code. Even if we were to be as foolish as to seek some sort of customs union with the EU, which we argued was very unwise, this bit will need to be re-worked as the term “Community Customs Code” would not be appropriate to describe the customs arrangements of an ex-member state.

So it is quite apparent that even a simple piece of EU legislation which our Government may wish to retain in a way that it works after Brexit exactly as it did before will need to be re-written in places. Given that in October 2015, the EU acquis amounted to 23,076 pieces of legislation and has grown further since, it is very apparent that our teams of Civil Servants will have a massive task on their hands  if everything will be ready for Brexit day.

If this concept is relatively straightforward to explain, a more complex issue is concept of the superiority of EU law over domestic legislation.  Our accession to the European Union granted power to the EU to introduce or amend legislation superior over British law “without further enactment.” (These three words come verbatim from the European Communities Act 1972.) On leaving the EU, what status do EU laws have relative to earlier domestic legislation? This is not an easy question to answer, even if you are a lawyer.

The concern among both Opposition MPs and the devolved assemblies in Edinburgh, Cardiff and Northern Ireland is that a combination of the re-writing process and the complexity of any new relationship between legislation which originated in Westminster and that which was passed down to us from Brussels will actually change the make-up of our statute books without Parliament being consulted or even being aware.  In other words, the Government  will use the EU (Withdrawal) Bill as an opportunity to further its own political agenda without requiring Parliamentary scrutiny. It certainly does appear to  strengthen the hand of the executive, rather than Parliament, because of the delegated powers it contains.

At the heart of this so-called “power grab” is the use of the Statutory Instrument – a facility which, in certain situations allows the government to make or amend legislation without Parliament having he power to change or even debate it. Given that MPs are our elected representatives, the very existence of anything which allows the democratic process to be bypassed is unsatisfactory. There is, however, a certain irony in the loudest critics of the use of Statutory Instruments being europhiles – after all they support our EU membership which reduced the power of Westminster. Ken Clarke famously said in 1996 ““I look forward to the day when the Westminster Parliament is just a council chamber in Europe” so any new-found commitment to Parliamentary democracy is somewhat hypocritical given the real loyalties of Europhile MPs lie in Brussels, not Westminster.

There is no doubt that Brexit provides us with an opportunity to re-boot our complete democratic process and indeed, this needs to go well beyond giving Parliament greater opportunity to hold the government to account by strengthening its powers of scrutiny. Our democratic process should be re-vamped to give us, the people, greater power over the people we elect to represent us and ot hold them to account if they, individually or collectively, do a bad job.

But that is for the future. The immediate concern of groups like Unlock Democracy is that the sheer complexity of repatriating EU law is that some legislation derived from EU Regulations and Directives may be weakened or lose its force completely. There is another possibility that the amount of work required in re-working all this legislation will end up with ambiguities more by accident than design.

The Hansard Society has come up with three proposals which at least mitigate these concerns:-

  1.  The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.
  2. A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers
  3. A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation

These are eminently sensible suggestions. The only problem is the timescale. We cannot afford to arrive at Brexit day with any gaping holes in our legal system. To take one obvious example – there will be little if any pre-1973 domestic legislation relating to information technology, the Internet or mobile phones. Massive developments have taken place in these fields since we joined what has become the EU. It is therefore very likely that most of the legislation regulation which govern them comes from the EU. If a given piece of EU legislation slips through the net, some important aspects of day-to-day life for many of us would be completely unregulated.

This piece only scratches at the surface of the complexities our politicians and civil servants face. A huge task lies ahead of them and one which is even more critical than securing a trade deal with the EU.

However given we are talking about well over 20,000 items of legislation, are there some which are so obviously inimical to our interests as an independent, sovereign nation that they should be excluded from the European Union (Withdrawal) Bill altogether? We will consider this subject in the next article.

How to uncouple ourselves from the EU’s quangocracy

The Red Cell’s latest research looks at the EU’s hidden layer of administration and governance. The Tangled Web: Dealing with EU Agencies after Brexit reflects on a massive growth industry in the EU. Today, Euroquangos employ 15,000 people and operate a budget of €10.1 billion. Clearly, this is not small beer territory but high ABV % Burton on Trent land, and should be an area of considerable focus for Brexit planners.

Their interpretation will clearly vary from case to case. Some institutionally are straightforward duplicates of national counterparts, undertaking missions that currently have minimal or a shared treaty foundation, but whose simple existence provides cover for the Commission or MEPs to justify their own ambitions to gain greater powers down the line. By contrast, a small number of others generate output that has a direct bearing on the interoperability of certain sectors. The question that arises in the latter case is therefore: can the same effect be duplicated by setting up an external liaison mechanism, and by providing legal cover for existing agreements to transition into bilaterals?

In most cases, it would appear to be so. The assessment reached is that of the 53 Agencies, only two merit something approaching formal UK affiliation; eight require a liaison role through a form of “Strategic Association”; while the rest (all 43 of them) can be dealt with by checking their website and picking up the phone. Clearly, much is dependent on how quickly legal bridges can be constructed to span those areas where treaty continuity is essential after Brexit, though in most cases a preliminary review would suggest this is an issue of specifics rather than generic concern.

So what then should be the guiding principles used to drive the audit, and what do ministers and civil servants need to plan around conceptually? The Red Cell report identifies seven themes.

In the first instance, association should default to the most minimalist level, unless a practical need for closer administrative cooperation is proven. What can be achieved by a phone call or monitoring a web site should be left at informal intergovernmental level. The default should not be to begin with where we are at now, if we are to make the most of the opportunities of Brexit.

Secondly, planners need to appreciate why that concept of institutional distance is inherently desirable. Euroquangos constitute an enduring element of political risk, owing to the strategic objectives of the EU. They are also a long term distraction and complication for UK delegates sitting in those international bodies that generate trading standards and which should constitute the priority arena.

Meanwhile, the nature of future cooperation should not be set up in such a way as to give one part of Whitehall a courtier’s monopoly. That risks generating a vested interest held by one department, supporting the body accruing powers at the expense of competing departments, but at actual cost to collective sovereignty.

Priority should be given to points of liaison that focus on cutting and pre-empting technical barriers to trade.

Fifthly, the money issue. Juste retour should apply: the funding of programmes should, taken collectively, be cost neutral in terms of the budget that comes back. The UK should no longer be subsidising expenditure done in poorer EU states – unless, that is, the Government is planning on taking those net sums off the 0.7% international development target, which one doubts.

Sixthly, any cooperation should not include automatic obligations for the UK to legislate, which must be the preserve of Parliament. As a future paper by the Red Cell will explore, the UK also needs in the interim to develop better mechanisms for monitoring how global standards are set, as it becomes closer in the food chain to the standards being set at their global source.

Finally, and associated with that theme of good governance, while UK quangos may in some cases initially take over from Euroquangos as a default, change must not end there. An opportunity exists for significant reforms of the national system of off-books government, with powers returning to more direct democratic supervision through ministers within departments, greater Parliamentary oversight, devolution to regional government level (and, importantly, beyond), and more direct legislative responsibility and accountability.

The EU Agencies collectively constitute a huge subject matter spanning the concerns and output of most government departments. To do the subject(s) justice, each Agency merits a paper in its own right. No doubt Whitehall is already well into the process of doing just that. Hopefully though, this research will encourage auditors to be justly bold in their approach and not take the assumed ‘benefits’ of current affiliation at face value. Otherwise, our fleet of Euroquangonauts will be orbiting us in great cost and numbers for a long time yet to come.

(this article originally appeared on the Brexit Central website and is used with permission) 

What is really going on? Stepping outside the media bubble.

If you are Brexit supporter fed up with all the muddle emanating from the media, a press release from the European Commission is hardly the obvious place to turn for clarity.

A recent communication, entitled “State of play of Article 50 negotiations with the United Kingdom” nonetheless does help to clear some of the fog surrounding the current state of play with Brexit. In particular,  it offers some welcome clarification over the debate as to whether Article 50 is reversible. “It was the decision of the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification.”

In other words, pulling back from Article 50 would require the agreement of both the EU and the UK government. This isn’t on the cards, whatever Vince Cable may be saying. It also provides clarification about life after Brexit. The UK will become a “third country” on 29th March 2019 and if there is no agreement between the UK and the EU by then, we will be reliant on WTO rules for trade.

This looks unlikely. It is almost certain that there will be some form of agreement, but whether it will be sufficiently comprehensive to cover all areas of trade, including non-tariff barriers, remains to be seen. Essentially, the options for both us and the EU are for us to crash out of the EU or to come up with an agreement which has been signed off by the UK government, the European Council and the European Parliament. A qualified majority is required in the Council and no mention is made of the need for parliaments in the member  states to endorse the agreement. Significantly, the institution which produced this document, the European Commission, will not be involved in the sign-off at all.

A new mindset in the Civil Service?

Another interesting article to be brought to our attention is this piece from the Civil Service blog. It mentions the Department for Exiting the EU, or DExEU, a new department created specifically to handle Brexit. So far, 450 staff have been taken on and there are plans to recruit a further 400 during the course of this financial year.  Another new Department, the Department for International Trade, has grown to 3,200 staff. The blog is very complimentary about the quality of work achieved so far by DExEU. “Within days of its establishment – from a standing start – DExEU was delivering policy analysis and advice of the highest quality to the new ministerial team.” One has to say that if the policy analysis and advice was of such a high quality, it is a pity that, judging by some of the ministerial announcements in recent months,  it seems to have been ignored!

The blog’s author, Sir Jeremy Heywood, acknowledges something which we believe to be self-evident but which again, does not seem to be reflected in some of the statements we have heard from the Government:- “This is probably the biggest and most complex challenge the Civil Service has faced in our peacetime history.” On 29th March 2019, for the first time in over 46 years, the buck will stop with Westminster and Whitehall. There will be no Brussels to blame if things go wrong. Our elected representatives and the Civil Service will be fully responsible for running the country and will no longer spend some – or in some cases, most – of their time enacting legislation agreed by the EU. This truly requires a different mindset and we can but hope  that the very upbeat tone of this blog is soon reflected in the actions of government departments, including preparing businesses for the changes which lie ahead.

The Great Repeal Bill

Returning to the Commission’s article, it points out that on 29th March 2019, the EU treaties will cease to apply to the UK. All legislation put onto our statute books which originates with the EU derives its authority from the treaties, so would be rendered null and void on Brexit day.

Due to the impossibility of replacing 46 years of EU laws with domestic legislation in such a short timescale, EU legislation needs to be “repatriated” – in other words, retained on the statute books but with the authority no longer derived from the EU treaties but from the UK Parliament. The European Union (Withdrawal) Bill, as the Great Repeal Bill is more correctly known, has now been published. It is a full 66 pages long and covers both the European Communities Act of 1972, which will be repealed on Brexit day, and the incorporation of EU law into UK law. The EU’s Charter of Fundamental Rights is not to be brought across, although no mention is made of exempting fisheries legislation, which will be covered by another bill – at least, that was the plan in the Queen’s speech.

It affirms our independence from the European courts and also provides some general guidelines for changes that will need to be made to the appropriate items of legislation to reflect the fact that their authority is no longer derived from the EU. It also confers powers on Ministers to use secondary legislation to amend provisions as they are transposed, although the amount of re-writing which will actually be required goes way beyond the guidelines in this Bill. Completing the necessary changes by March 2019 is going to be a major challenge whatever,

Our proposed withdrawal from the Euratom treaty, which provoked a storm in a teacup, is confirmed under the general guidelines for changes, as is the withdrawal from the EEA agreement, which does pose the question as to the nature of any transitional arrangement for EU-UK trade.

The bill for triggering Article 50 went through Parliament without amendment. The progress of this much longer bill is not likely to be straightforward, but of one thing we can be sure:- much of the mainstream media is likely to be providing us with a very unreliable guide on its progress.

Photo by RNW.org

You can never trust an emigré

I was going to write this column a couple of weeks ago, but I was unable to find the correct source for the quote that serves as the title. I still haven’t been able to track the quote down properly, so you will have to take this as an unsourced anecdote instead. But one of immediate and urgent relevance to our current state of relations with the European Union.

In the autumn of 1813, Wellington was poised to cross the Pyrenees and invade southern France. He was faced by the decision of where to strike. At this point a group of French Royalist emigrés appeared with inside information that had, they said, come from their contacts inside France. Bordeaux was in a state of turmoil. Royalists had armed themselves and were just waiting for a chance to rise up against the hated Bonarpartists. If Wellington attacked towards Bordeaux, the emigrés claimed, he would have a warm welcome and an easy victory.

It was at this point that Lt Colonel Colquhoun Grant , Wellington’s chief intelligence officer, stepped in to say “You can never trust an emigré”. He suspected, rightly, that these emigrés wanted Wellington to do their dirty work for them, defeat the French forces around Bordeaux and so allow them to move in and exact their own brand of revenge on personal enemies. Wellington listened to Grant, and advanced toward Toulouse instead.

It is, indeed, a truism that you cannot trust those with ulterior motives. Particularly emigrés.

From 1998 to 2002 the American intelligence agencies spent a lot of time speaking to Iraqi emigrés. These exiles poured out a host of stories about how unpopular Saddam Hussein was, how Saddam had vast stocks of weapons of mass destruction and how Saddam was a dangerously unstable dictator who was just itching to invade neighbouring states. The only solution, the emigrés said, was for the USA to invade Iraq and remove Saddam from power.

The US intelligence services did not heed Grant’s advice. They believed the emigrés and only later realised that it was all a pack of lies designed to get the Americans to remove Saddam from power. We all know how well that ended.

And so we come to today. In the Referendum last year, those who wish to leave the EU gained a majority. Since then most of those who voted “remain” have accepted the decision. But a small number of die-hard Europhiles have not. They fondly believe that they are right, that a growing number of British people agree with them and that the referendum decision can be overturned. For the most part they are harmless, but some are not.

Some are men and women who have high level contacts in Brussels, Berlin or Paris. Like the emigrés of old, they are saying what their audience want to hear. “The British people are changing their minds”; “The British economy is in trouble”; “We can stop Brexit with legal challenges”; “Parliament will never agree to go with WTO rules” and so on and so forth.

This is dangerous stuff. If the EU negotiators believe these emigrés  – and from what I have heard some are inclined to do so – then they will seek to impose a punishment deal on the UK in the belief that this will cause the UK to change its mind and stay within the EU.

So those well-connected big beasts with their contacts within the EU machinery are working against the interests of their own country. Like the emigrés of old, they are wanting the EU to do their bidding for their own reasons. They are potentially dangerous, they are certainly wrong. The EU should heed Grant’s advice and “never trust an emigré”.

Photo by dun_deagh

The dark shadow of David Cameron hovers over Westminster

Finally, after a long battle over various proposed amendments, a vote following the third reading of the European Union (notification of withdrawal) Bill saw it passed by 494 votes to 122, a majority of 372. This is slightly down on the 384 majority in last week’s vote, mainly due to an increase in the number of Labour MPs voting against it. In spite of much whinging by a few unhappy Tory MPs, in the end, none of them joined Ken Clarke in the “no” lobby. The full list of MPs who voted against the will of the people can be found here.

The proposed amendments were voted down and the recent announcement by the Government that MPs would have a vote over the final Brexit deal was actually quite astute. It satisfies their demand to have a say but at the same time gives them very little wiggle room. There is no question of MPs vetoing Brexit at the end of the negotiations if they don’t like the deal. The choice will only be about how we leave – either backing the government’s package (whatever it turns out to be) or going for a disorderly Brexit relying on WTO rules only – an outcome that no one in their right minds would support.

So now the bill goes to the House of Lords. One government spokesman said “The Lords will face an overwhelming public call to be abolished if they now try and frustrate this Bill. They must get on and deliver the will of the British people.”  In other words, the Europhile majority must accept the result, just like many of their pro-remain colleagues on the House Commons. A gun is essentially being pointed at their heads and a call by Lib Dem MP Lynne Featherstone for their Lordships to block Brexit as their “patriotic duty” is unlikely to win many new friends either for her or any peers who follow her advice.

The Upper Chamber can propose amendments, which will then be debated by the House of Commons, but no one can doubt Mrs May’s determination to ensure that the bill will complete its  passage through Parliament in time for her self-imposed deadline next month. For all the huffing and puffing we are likely to hear from the Upper Chamber, it is therefore most unlikely it will amount to anything more than angry noise – just like the sickening behaviour of SNP MPs when following yesterday’s vote, they started first whistling then humming the EU’s “National Anthem” – the Ode to Joy from Beethoven’s 9th Symphony – in the Commons chamber. They received a justified rebuke from the Deputy Speaker, Lindsay Hoyle.

Of course, all this would not have been necessary were it not for the incompetence of David Cameron, whose dark shadow must have been hovering over Westminster in recent days. Not expecting to lose, he did not draw up the referendum legislation in a competent manner. Whereas there was no ambiguity about how Westminster was to have responded if Scotland had voted to leave the Union, the Government’s promise in its booklet sent to every household that “The government will implement what you decide,”  carried no legal weight, hence Gina Miller’s challenge and the resultant hours spent debating the withdrawal bill.

Mrs May and her team have stood firm on their commitment to deliver Brexit and for this they deserve our respect and full support. However, the really hard bit is yet to come. Tough as beating down the opposition in Parliament has proved, it will not be nearly as tough as the challenges of negotiating a deal which will see us exit the EU seamlessly in two years’ time.

Death of a parliamentary colleague

Death of a parliamentary colleague – Nigel Spearing

Nigel’s death comes at a turning point in our long and arduous campaign against UK membership of the EU. He was always a strong opponent of the ‘European Project’  to build a United States of Europe without first getting the approval of its peoples. He was one of the first Labour politicians to appreciate there could be no compromise with the Eurofanatics in the British Press and Parliament. The weakness of their arguments was finally exposed in the 2016 Referendum campaign. Until his final illness, Nigel was a stalwart of our long drawn out battle to save the country we loved from an ignominious future as an outpost of a superstate. His work for our cause over several decades, in and out of Parliament should be long remembered

Eric Deakins

Former Labour MP

1970 – 1987