Garvan Walshe / Nov 2017
Photo: European Union
The British Parliament begins its first serious debate on Brexit legislation today (14 November). This is happening under what is known as the "committee stage" of the EU Withdrawal Bill, but despite this name, the whole House of Commons will be taking part.
The Bill is contentious, and seen by its opponents both as an attempt to deny Parliament a say over the Brexit negotiations, and a more general executive power grab through its evocatively named "Henry VIII" clauses (legislative instruments that allow Ministers to make, by means that in other legal systems would be a decree, provisions that normally require a full legislative procedure), so called because King Henry VIII intimidated and suborned Parliament to give him the ability to legislate by royal proclamation.
Since the Government has only the narrowest of parliamentary majorities, this is legislation that the opposition, together with pro-European Conservative MPs, hope to amend.
Once the balancing effect of the small number of Labour anti-Europeans who are expected to support the government is taken into account, it is estimated that just eleven Tory MPs are needed to vote for an amendment, to force the government to accept them.
Of the the 186 pages of amendments, four are particularly important. Two have been submitted by the well-respected and fearsomely articulate Dominic Grieve, Attorney General in David Cameron's administration. Another by veteran former Chancellor (finance minister) Kenneth Clarke, a fourth by pro-European Labour MP Chris Leslie.
The most important of Mr Grieve's pair for UK domestic politics is the one that would require the Government to introduce a new statute to implement the outcome of Brexit negotiations. Hard Brexit advocates of "no deal" mistakenly look upon this as a device to thwart the referendum result. In fact, as the UK Supreme court's judgement in the case brought by Gina Miller last year, establishes, the effects of leaving the EU can only be applied to British law through specific legislation. Passing this amendment would actually save the government court case it is likely to lose. UK Brexit Secretary David Davis’s concession yesterday: that the government would introduce a new bill in the event of a deal, does not satisfy this requirement.
His second is more technical, but could have a bearing on the outcome of EU negotiations, and in particular the European Parliament's view of them. It has to do with how existing EU law is incorporated into British law after the UK leaves. In Britain there are two kinds of legislation, "primary" and "secondary." The relevant difference between them on this occasion is that British courts can strike down secondary legislation, but must work within the bounds of primary --- at most they can find that it contradicts the Human Rights Act, and issue a "declaration of incompatibility" to that effect. If EU law is transposed in to British law as primary legislation, it will give powers to the British executive to act in ways that mean it cannot be held to account by the courts. People will in effect lose rights they currently have, because there will be no way to exercise them.
These extend to important areas of law, including equality protections for EU citizens living in the UK that could be rendered toothless if Mr Grieve's amendment isn't passed.
Kenneth Clarke's is a work of fine political and legislative art. It asks Parliament to put into law the promises the Prime Minister made in her Florence speech in September: to seek a two year status quo transition. It does not in itself, stop the cliff-edge, but it would delay the process and allow more time for British public opinion to become accustomed to a soft Brexit that left Britain in the EEA. It will be interesting to see how many Conservatives back, or perhaps abstain, on this one.
Finally, Mr Leslie's asks the government to seek to keep Britain in the Single Market and Customs Union for "not less than" two years. It's unclear whether this --- a matter of outcome --- is legitimately within the scope of a process-oriented Bill; but it is worth noting that it is precisely the kind of "negotiating mandate" that anti-Europeans hoped to use to limit the British government's freedom of manoeuvre in the European Council.
These amendments aren't the only obstacle the Bill will face. The House of Lords will introduce its own next year. A particularly serious conflict has been set up with the Scottish and Welsh governments who need to give consent to the bill which as currently drafted hands powers directly to Westminster but not to Edinburgh or Cardiff.
By introducing such an ambitious EU withdrawal Bill Theresa May's government hugely overestimated its strength, and failed to take the setback it suffered in the June elections seriously. As a result it has inflicted a host of problems on itself. The debate in the House of Commons is only the first of many.