Brexit Select Committee Report
Schona Jolly QC*@WomaninHavana*
In any rational world, this common sense conclusion of @CommonsEUexit report (out now) couldn't be controversial.
Without an economic assessment of 'no deal' having been done and without evidence that steps are being taken to mitigate what would be the damaging effect of such an outcome, the Government's assertion that "no deal is better than a bad deal", is unsubstantiated. The Government should set out what contingency planning is taking place for the risk that there is "no deal" at the end of the Article 50 negotiating period and undertake an economic and legal assessment of such an outcome - in which the UK would fall back on trading under World Trade Organisation (WTO) rules - the cross-party Exiting the EU Committee concludes in its report
2/ Brexit Sec @DavidDavisMP confirmed to @CommonsEUexit that a 'No Deal' would affect tariffs, passporting rights & Irish border.
3/ Report recommends that prioritising Irish border concerns should be top of the list for negotiating priorities. Hard to argue with that.
4/ Govt must establish more effective process for engaging devolved adminis, & formally respond to Welsh, Scottish & NI option papers.
5/ Some prescient comments about Gibraltar in the report. Something about Govt looking for solutions (war with Spain isn't in there, btw).
6/ Take this by way of forewarning on Gibraltar. UK reaction - blindsided & imperial - is ridiculous in face of entirely predictable circs
- In the referendum, 96 per cent of the Gibraltarian electorate vote in favour of remaining in the EU. The Chief Minister of Gibraltar, the Hon. Fabian Picardo QC told us that:
"the people of Gibraltar did not vote on the basis of whether we liked the European Union or whether the European Union was faultless. I think we could all understand many of the issues that were being put in argument by those who were arguing to leave the European Union. Many of the frustrations that people felt with the European Union are equally felt in Gibraltar, as they might be felt in the United Kingdom and elsewhere throughout the EU. The people of Gibraltar were voting because we were very clear that the minute the result came in, if it was to leave, Spain would be putting the issue of Gibraltar's sovereignty on the table"
7/ Cttee has urged Govt to publish Great Repeal Bill in draft because of important constitutional & legal issues posed by unique challenge.
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The Government has announced its intention to introduce a “Great Repeal Bill” to provide legal certainty for the UK on leaving the EU. The Bill will be designed to repeal the European Communities Act 1972 and convert the acquis of existing EU law into domestic law. Accordingly, on the day after the UK leaves the EU, the same legislation will apply as applied before exit. The UK Parliament and, where appropriate the devolved legislatures, will then be able to determine which legislation they wish to keep, amend or repeal. The Bill is also expected to delegate powers to Ministers to amend “laws that would otherwise not function sensibly once we have left the EU” by means of secondary legislation.
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In its report on The “Great Repeal Bill” and Delegated Powers, the House of Lords Select Committee on the Constitution noted that the UK Government and Parliament faced a unique challenge in transposing the full body of EU law into domestic law, not least because “the body of EU law is found in a number of different places”. Some EU law underpins existing UK legislation (for example EU directives which must be converted into domestic law) and some is directly applicable in the UK (for example EU regulations that apply directly in the UK under the terms of the European Communities Act 1972). The Select Committee on the Constitution noted that:
Yet further elements of the body of EU law are non-legislative in nature, consisting, for example, of judgments made by the Court of Justice of the European Union, regulatory rulings by EU agencies, or in the interpretation of our own courts.
The Lords Committee added that the task was complicated by the fact that in many areas, the final shape of the law will depend on the outcome of negotiations on the UK’s exit, but preparations will have to be made in time to come into force on the day that the UK leaves the EU.
12.The “Great Repeal Bill” itself will not be a straightforward undertaking and will raise a number of important constitutional and legal questions, in particular:
- Whether and how the Bill will seek to remove references to EU institutions and agencies from the EU law which is to be transposed into domestic law and what institutions will be referred to in their place;
- The breadth and scope of any “Henry VIII powers” contained in the Bill which will enable Ministers to make changes to primary legislation which applies EU law through secondary legislation and, if so, how these will be limited;
- Whether the Bill will require legislative consent motions from the devolved legislatures;
- The impact on the constitutional settlements of Wales, Northern Ireland and Scotland; and
- Whether judgments of the Court of Justice of the European Union (CJEU) will continue to be relied on in UK courts after Brexit in order to interpret the transposed acquis.
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The nature of the legislative powers that will be delegated and the appropriateness of Parliamentary procedures for their consideration are the subject of an inquiry launched by the House of Commons Procedure Committee.
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In our First Report, we urged the Government to publish the “Great Repeal Bill” in draft to enable the “fullest scrutiny” of its provisions to take place before formal consideration took place in Parliament. This was merited “given the significance of the repatriation of legislative competences to the UK for the constitutional makeup of the UK [and the] implications for the devolution settlement”. The Secretary of State told us that the White Paper on the Bill had been delayed by the elections in Northern Ireland (and the Government’s desire to inform the Northern Ireland Executive in advance of publication), but would be published soon.
8/ You may remember my thread on last week's so-called Great Repeal Bill. Summary was - nine months later, where's the detail & a draft?
9/ The Commitee has something sensible to say, too, about Govt's "red line" on CJEU. In short, it may not be quite so simple in reality.
- Ending the jurisdiction of the CJEU over the UK is one of the Prime Minister’s “red lines” in negotiations. The European Communities Act 1972, which the Government is planning to repeal, provides that rulings of the CJEU are binding on UK courts. Whilst the UK is likely to move away from the jurisdiction of the CJEU on exiting the EU, the terms of the UK’s future relationship with the EU may entail continuing regulatory conformity in certain areas, such as certain product standards or data protection. Where regulatory conformity provides the basis of the continuing relationship, this may necessitate agreeing dispute resolution procedures, in trade and other areas, which require continuing account to be taken by UK courts of CJEU case law, just as in any similar agreement with another country the UK courts would take account of the other country’s rulings.
10/ On EU nationals in U.K. & UK nationals in EU: Unconscionable" for over 4m people to live in a state of uncertainty over future status.
11/ Cttee recommends Govt & EU27 prioritise a stand-alone separate deal on status of nationals, not dependent on trade deal being agreed.
12/ Cttee took a very dim view of Govt's failure to do impact assessment of leaving EU without a deal. Who could properly argue with that?
293.We note the Foreign Affairs Committee’s recent conclusion that a ‘no deal’ scenario “represents a very destructive outcome leading to mutually assured damage for the EU and the UK”. We share that view. It is, therefore, very important that both the UK and the EU avoid reaching the end of the two-year negotiating period without an agreement. The Government has talked about walking away from a bad deal, but has not yet explained what terms would be demonstrably worse for the UK than ‘no deal’. The Government should therefore conduct a thorough assessment of the economic, legal and other implications of leaving the EU at the end of the Article 50 period with ‘no deal’ in place. This should be published. The public and Parliament have a right to the maximum possible information about the impact of the different future trading options being considered, including the possibility of no FTA being reached.
13/ In summary,report looks at at many of the big important areas which will affect the UK's future & which Govt #WhitePaper didn't address.
14/ I have to stop but even a quick glance through @CommonsEUexit report shows pragmatism, common sense & the scale of issue facing us.
15/ That this has caused controversy & pro-Brexiteers walked out shows they aren't willing to face facts.It's destructive ideology at play.
16/ Oh & here's the link to @CommonsEUexit report on Govt negotiating objectives for Brexit. Read for yourself & see
www.parliament.uk/business/committees/committees-a-z/commons-select/exiting-the-european-union-committee/news-parliament-2015/brexit-white-paper-report-published-16-17/
'No deal is better than a bad deal' claim unsubstantiated
RTB: Please do take the time to read the report (or at least the summary). Its important. It shows up just how irresponsible the government are being, and they are being advised, by other MPs.