What does the new government mean for public lawyers?
The European Union (Withdrawal) Bill (“the Bill”) is the primary legislation intended to give legal effect to Brexit and preserve the integrity of the UK legal system after departure. It is at the committee stage in the House of Commons and last night, in a committee of the whole House, an amendment to the bill tabled by former attorney-general Dominic Grieve was voted through in a 309-305 vote with 11 Tory MPs rebelling against the government.
The amendment in question, ‘Amendment 7’, was an amendment to Clause 9 of the Bill ‘Implementing the withdrawal agreement’. It inserted the words “subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union”. Clause 9 is the so called ‘Henry VIII’ clause which enabled the agreement reached with the EU to be implemented by Ministers using secondary legislation. The effect of the amendment is that agreement with the EU now has to be approved by statute passed by Parliament before it can be implemented.
The passing of this amendment has stirred up Brexit “hysteria” once again with the Daily Mail promptly updating its ‘enemies of the people’ list with the names of the 11 Tory rebels. Labour leader Jeremy Corbyn described the result as “a humiliating loss of authority for the government on the eve of the European Council meeting”. Brexiteers are angry for precisely this reason: they believe the negotiating position of Theresa May has been weakened by the disobedience of those who should be supporting her. Given that the EU knows that the final agreement has to be approved by Parliament, the credibility of any ‘hard Brexit’ positions (or threats) during the upcoming negotiations may not be great. The Prime Minister will have to think carefully about what options, if any, will be more likely to win cross-party support. Single market membership may be a candidate for a compromise solution.
The government needs to be ready for battle again in less than a week’s time when the Bill completes its committee stage. On Wednesday 20 December MPs will be considering ‘Amendment 381’ which is a government proposal to define ‘exit day’ in the interpretation clause of the Bill (Clause 14) as 29 March 2019. This would fix the date of departure rather than leave it open to be appointed. A number of the rebels including Dominic Grieve have indicated that they will be ready to vote against the government again.
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