The European Union (Withdrawal) Bill: constitutional change and legal continuity

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The long-awaited ‘Great Repeal Bill’, to be known officially as the European Union (Withdrawal) Bill, was published last Thursday. The bill is a complex mix of constitutional change and legal continuity. Jack Simson Caird highlights some of its main elements.

Nine months after Theresa May first announced that there would be a ‘Great Repeal Bill’, and three and a half months after triggering Article 50, the European Union (Withdrawal) Bill (EUW Bill) was published on 13 July 2017.

Constitutional change

The EUW Bill repeals the European Communities Act 1972 (ECA) (clause 1). The ECA provides the ‘conduit pipe’ through which EU law flows into the UK, and represents a central component of the UK’s current constitutional architecture. The key provisions of the EUW Bill replace the ECA with a new constitutional framework. The main constitutional changes in the EUW Bill include:

  • the creation of a new distinct body of law known as ‘retained EU law’;
  • broadly-framed delegated powers for government to alter this body of law;
  • new instructions to the courts on how to interpret retained EU law; and
  • amendments to the legislation that underpin devolution.

Legal continuity

The government’s position is that the primary purpose of the bill is to provide a ‘functioning statute book’, ensuring legal continuity after exit day. The bill’s most-far reaching provisions, in terms of their direct legal effect, are those which retain existing EU-derived law (clause 2) and convert most directly-applicable EU law (clause 3). However, the continuity provided by these provisions must be seen in context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame.

Balancing continuity and change

Since the announcement of the intention to convert the acquis (the entire body of EU rights and obligations) ‘wholesale’ through this bill, the government has claimed that the general rule is that the ‘same rules and laws’ will apply on the day after Brexit. While a significant proportion of EU law will be able to be preserved, this general position masks the complexity of legislating for Brexit:

  • the delegated powers in the bill will be used to amend retained EU law in significant ways, notably to reflect the withdrawal agreement;
  • a proportion of EU law will no longer apply once the UK is outside the EU;
  • the government is bringing forward a number of bills to make substantive policy changes in areas currently covered by EU law; and
  • preserved EU law will function differently as retained EU law than it did as EU when the UK was an EU member state and subject to the full force of EU law.

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The report of the Scottish Parliamentary Reform Commission: Westminster as a model for reforming Holyrood?

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The Scottish Parliament’s Commission on Parliamentary Reform, established by the Presiding Officer last year, reported in June. Its recommendations include that committee conveners should be elected by the whole Parliament, changes to First Minister’s Questions, the extension of the legislative process from three stages to five and the establishment of a new backbench committee. Ruxandra Serban summarises the report and notes that several of the most substantive recommendations would bring the Scottish Parliament’s procedures closer to those of the House of Commons.

The Commission on Parliamentary Reform was established on 26 October 2016 by the Presiding Officer of the Scottish Parliament, Ken Macintosh MSP. It was chaired by John McCormick, a former Controller of BBC Scotland and UK Electoral Commissioner with special responsibility for Scotland, and included 10 other members: five from civic society appointed by the Presiding Officer, and one nominated by each political party represented in the Scottish Parliament.

The Commission was appointed to review the evolution of the Scottish Parliament in the 18 years since its founding, and to assess its capacity to deal with the additional sets of responsibilities devolved through the Scotland Act 2016 and expected to result from the Brexit process. The Commission convened between November 2016 and June 2017, and sought evidence through meetings and public events, written submissions, oral evidence sessions and an online survey.

The report published on 20 June 2017 makes reference to the set of principles proposed by the Consultative Steering Group (CSG) in 1998 as the key benchmark against which to measure the effectiveness of the Scottish Parliament, and upon which to base suggestions for reform. The CSG was set up in 1997 by the UK government to consider institutional design options for the Scottish Parliament. Its report set out four principles to inform the functioning of the new parliament: power-sharing; accountability; open and accessible participation; and equal opportunities. Since then, some questions have been raised about whether the Scottish Parliament has truly managed to embody the principles of ‘new politics’ envisaged by the CSG, or whether it is in fact a ‘Westminster model’ parliament (notably here and here).

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2017 select committee chair elections: a short guide

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The new parliament is the third in which chairs will be elected by the whole House. These elections take place on Wednesday, with 28 chairs to be elected (though only 11 are being contested). Andrew Kennon discusses these elections and some of the trends that have developed over the seven years the system has been in operation.

Wednesday 12 July could prove to be the next best indicator (after the votes on the Queen’s speech) of how effective the new House of Commons will be at performing its constitutional role. It is the day when 28 people will be elected by their fellow MPs to chair select committees in these tumultuous times. No other parliament in the world has yet entrusted the choice of committee chairs to a secret ballot of all MPs. The system was the unexpected outcome of the expenses scandal and the imagination of the resulting reform committee, chaired by Tony Wright MP, to find ways of rebuilding the reputation of the House of Commons.

Direct elections

Chairs of select committees were first elected by the whole House in 2010 and then again in 2015, so the system is still fairly new. But members have quickly learnt how to get the best out of the system. Notably members of newer intakes have used the elections to ensure that their generation does not have to wait decades for their share of the spoils. Chair by-elections in 2014 saw two of the 2010 intake, Sarah Wollaston and Rory Stewart, securing the chairs of the Health and Defence committees, and other members of the 2010 intake were elected to chairs in 2015. It would be good to see more of the 2010 MPs taking the helm of committees now and some of the more recent arrivals staking a strong claim. The last thing we need is an American approach of longevity as the determinant of chairmanships

The distribution of chairs between parties in 2017, based on their strengths in the House, is only slightly changed since that of 2015 – the Conservatives have given up the chair of the Science and Technology Committee to the Liberal Democrats. It would have been possible, within the same number, for a more imaginative re-distribution of committees between parties to have taken place. This would certainly have occurred if there had been a change of party in government.

Term limits

There are term limits for select committee chairs and this rule will bite unexpectedly as a result of the early general election. Several chairs first elected in 2010 will – if re-elected again now – have to stand down in mid-2018 under the current rule, causing by-elections for those chairs. Some that this would have applied to are not running again but Clive Betts (Communities and Local Government), David TC Davies (Welsh Affairs), Sir Kevin Barron (Standards) and Bernard Jenkin (Public Administration and Constitutional Affairs) are offering themselves for re-election. Three of these have now been re-elected unopposed but Clive Betts faces a challenge – with the exception of Ian Mearns, on the Backbench Business Committee, all other Labour incumbents are elected unopposed.

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British politics and what we’ve learned after the 2017 general election

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Last month’s general election delivered the latest in a series of political surprises, with the Conservatives falling short of a majority when many had anticipated they would win a landslide. On 21 June the Constitution Unit hosted a panel of election experts consisting of YouGov’s Joe Twyman and academics Justin Fisher, Jennifer Hudson, Philip Cowley and Alan Renwick to reflect on what happened. Fionnuala Ní Mhuilleoir reports.

Although we have become used to political upsets in recent years the outcome of the 8 June election nonetheless came as a surprise to many, including the Prime Minister, who saw her majority disappear when she had hoped to increase it substantially. How did this happen? How did the Conservatives manage to lose the massive lead they held at the start of the campaign, and Labour out-perform all expectations? How did the pollsters do after they had failed to call the 2015 election correctly? And what does the result mean for the government’s position in the new parliament, and for Brexit and beyond? These questions were all discussed at a Constitution Unit seminar held on 21 June, chaired by the Unit’s Director Professor Meg Russell. The panel included YouGov’s Joe Twyman, Professor Justin Fisher from Brunel University and Professor Philip Cowley from Queen Mary University of London. Dr Jennifer Hudson and Dr Alan Renwick from the Constitution Unit completed the line-up.

Joe Twyman

Joe Twyman opened the seminar with a brief post mortem on YouGov’s 2015 general election polling, which had predicted that the Conservatives would be the largest party in a hung parliament. The Conservatives went on to win 330 seats, securing a small but workable majority. YouGov subsequently identified three problems in the 2015 polling process: the samples used by YouGov and other polling companies to measure voting intention were not representative; figuring out whether people will turn out to vote is challenging; seat estimation across 650 constituencies is inherently very difficult.

Twyman then described how YouGov has responded to these issues. First, it has invested heavily in targeted recruitment, spending more than £100,000 in the last year to identify and recruit the types of people who were underrepresented in YouGov samples between 2010 and 2015, particularly those who were not interested in politics. Second, YouGov has updated how it analyses turnout. Thirdly, it has also developed a new seat estimation model.

This seat model, as is now well known, correctly predicted a hung parliament. In the run up to June 8 YouGov faced trenchant criticism, both from established commentators and on social media. Twyman reflected on Paul Krugman’s statement after the US election results that economists and commentators ‘truly didn’t understand the country we live in’. Through the efforts of YouGov, according to Twyman, we do now understand the country we live in a little better.

Justin Fisher

Justin Fisher began his contribution by drawing the audience’s attention to how important lead time ahead of an election is for party campaigns. The national and constituency campaigns have merged, with national campaigns now supporting the constituency effort. Lead time gives parties more time to plan targeting, information distribution, spending and fundraising. In a normal election campaign the critical period is the six-to-nine months before the poll.

The snap election left no opportunity for such advance campaigning. One implication is that this is likely to have been a much less expensive campaign than usual. Another is a shift in emphasis in campaigning techniques from direct mail (which requires lead time) to face-to-face campaigning and e-campaigning, which require much less preparation time. Fisher stressed that the evidence needed to confirm these expectations is still being collected.

Though the 2017 election may have accelerated the shift to e-campaigning, Fisher argued that campaigning techniques were partly heading that direction regardless. He also warned of what he called e-campaigning myths. He debunked the myth that micro-targeting of voters had only just been invented: parties have gathered data from phone calls and indirect mail for years. E-campaigning, therefore, represents evolution rather than a revolution. A further myth is the claim that because parties are using e-campaigning it must be effective. In 2015, research found it to be electorally effective, but less so than face-to-face campaigning. This has yet to be examined for the 2017 election.

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A new approach to deadlock in Northern Ireland

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After Northern Ireland’s political parties missed the latest deadline for reaching an agreement to restore devolved government, the current Assembly crisis is now the longest for over a decade. In this post Brian Walker suggests a new approach that might help to break the deadlock.

Standing back, it’s easy enough to see why the latest Assembly crisis is the longest and most intractable for over a decade. Unusually in recent times and in sharp contrast to the heady days of the Good Friday Agreement (GFA), this breakdown is set against a background of momentous upheaval which, typically, the local politicians have rushed to exploit for their own causes. For the DUP, Brexit revives the prospect of a physical border which in whatever final form confirms the fact of the Union. For Sinn Féin the prospect of Northern Ireland remaining in the EU as part of a united Ireland opens up a new route to the elusive old destination. Both parties now enjoy uncertain leverage in the two parliaments of their allegiance where minority governments uncertainly rule.

If Sinn Féin’s narrative of a people’s surge of rebellion against DUP intransigence is not entirely convincing, it cannot be denied that events outside have given fresh impetus to the struggle for Northern Ireland’s constitutional future. Internally, the frustrations of power sharing by which the winning parties are always denied the fruits of clear victory might otherwise have been contained, had it not been for a remarkable coincidence of the green energy fiasco and the fatal illness of Martin McGuinness. For Sinn Féin the chance of exploring whether Assembly elections could become one more useful stage in an unending series of mini-referendums to create momentum for a border poll was too good to miss. In the short run the tactic has not delivered, but the contest may become all the keener with the impending emergence of a Catholic voting majority. All election victories look like becoming marginal from now on and the prospect of a well functioning Assembly all the more uncertain. Or so it appears at the moment. As recently as May last year it all looked rather different.

The shortcomings of the UK government

Faced with the collapse of the Assembly, the British government’s attitude  was curiously passive until almost the last minute, compared to the close engagement of earlier years when in a high pressure environment prime ministers presided, ears were constantly bent and many draft proposals circulated. Even after making due allowance for mediation fatigue, this looks like a fundamental error, though whether out of calculation or incompetence is unclear. It is not enough to claim – rightly – that the government have bigger things to worry about: they usually do. For under the guise of respecting devolution (interestingly also the reason given for denying Northern Irish women abortions on the NHS in England and now overthrown), a Conservative pattern of relative disengagement since 2010 has weakened the British government’s authority and exposed a loss of touch. Secretary of State James Brokenshire’s impartiality was compromised from the moment he complained about legal action against ex-soldiers in January. He appeared to care more about the Tory cause of shielding them from possible prosecution than his essential role as a minister.

As an organising principle for the talks, the split between devolved and non- devolved matters, with the former chaired by the apolitical figure of the head of the civil service, was a pointless distinction.  While insisting on the sovereign power’s prerogatives, Brokenshire exercised them very little. The present government’s line on Brexit already placed them on the opposite side from nationalists in Scotland and Northern Ireland whose ultimate aim is to dismantle ‘the precious, precious Union’ they are pledged to defend. Might that have been a reason for letting the locals get on with it? The Secretary of State’s role as the judge of a majority in favour of a border poll is  therefore unlikely to survive unchallenged.

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