Paul daly @ pauldalyesq
We need to talk about the European Union (Withdrawal Agreement Implementation) Bill.
Behind the scenes a constitutional outrage is brewing quietly.
THREAD
The "WAIB" will be legislation of the highest legal, political and constitutional significance.
It exists in draft (so I'm told). It has been shown to some initiates (think tankers, academics).
But it has not been published.
As far as the world at large is concerned the WAIB sits quietly in a dusty drawer or deep in Windows Explorer on a DExEU machine.
Britain cannot leave the EU with a deal until this legislation is passed.
Let that sink in.
For all the focus on the meaningful vote, a vote approving the Withdrawal Agreement is only one of the pre-conditions for ratification.
The other is that the WAIB must be passed.
This is all set out in the Withdrawal Act, s13.
Let me repeat: no deal can be concluded until the WAIB has been passed by the House of Commons and the House of Lords and received Royal Assent.
Will this be a straightforward process? Well....
The WAIB has to do at least 4 things:
- provide for payment of the "divorce bill" negotiated with the EU;
- provide for the protection of citizens' rights;
- provide for the continuing supremacy of EU law during the transition period;
- and consent to remaining subject to the jurisdiction of the Court of Justice for the transition period (and longer in the case of citizens' rights)
To begin with, a question. Will the Eurosceptics in the House of Commons, especially Tories like Bone, Jenkin, and Lilley, who have waged guerrilla warfare against the EU for decades, simply roll over and have their tummies tickled when this Bill is introduced?
In light of your answer to this question, how realistic do you think it is that the PM will (a) secure a majority for her withdrawal agreement and (b) pass the WAIB before March 29?
If she cannot, there will be a no deal Brexit, or a delay.
Whatever about the political difficulties of convincing a majority of MPs to pass this legislation, it will be of extraordinary constitutional significance.
Parliament will be asked to provide entrenchment for citizens' rights and the supremacy of EU law.
Supremacy has been done before (in the European Communities Act 1972), but courts and scholars have disagreed over why the ECA 1972 was successful in this regard.
Entrenchment has not been done before
Many distinguished commentators have argued that because Parliament is sovereign, it can't bind itself to (say) not remove the rights of EU citizens in the future.
Others disagree. These are deep constitutional waters.
It is all about what 'taking back control' really means.
There is little doubt that many MPs, and a great number of the House of Lords, will want to scrutinise legislation of such constitutional novelty extremely closely.
Engaged members of the public will rightly want to have a say too -- for instance, the businesses who will have to comply with EU law during transition and the EU nationals whose rights are to be protected.
As things stand, however, this legislation is set to be rammed through between now and the end of March.
The scrutiny that this politically, legally and constitutionally significant legislation deserves would require a delay beyond March 29.
Indeed, if the government tries and fails to ram this through before March 29, we face a no deal Brexit by default, by automatic operation of law, as the clock ticks remorselessly down.
Remember: no WAIB = no ratification. See Withdrawal Act, s13
It is (in my view) a constitutional outrage that the WAIB has not been published in draft form, for public pre-legislative scrutiny by parliamentary committees, MPs, civil society, journalists and members of the public.
Much less important pieces of legislation have been published in draft.
This should be too.
Of course, publication at this stage would prompt significant political backlash. Those who dislike the supremacy of EU law and the Court of Justice will be up in arms.
But they are going to be up in arms whenever this legislation is introduced.
It might be better to have the crisis now, not at five minutes to midnight.
ENDS