The EU Withdrawal Bill: parliamentary prospects

The EU (Withdrawal) Bill received its second reading in the House of Commons by a relatively comfortable margin in the early hours of Tuesday morning. During the remainder of its parliamentary passage the government is likely to come under greater pressure, particularly on the issue of the delegated powers in the bill. On 13 September the BBC’s Mark D’Arcy and the Hansard Society’s Ruth Fox spoke about the prospects at the Constitution Unit. Alex Diggens and Jack Sheldon summarise what was said.

The European Union (Withdrawal) Bill looks set to be one of the most significant and controversial pieces of legislation to pass through parliament in recent memory. Ostensibly a bill to repeal the European Communities Act 1972 and manage the process of converting EU law into domestic law, the bill has far greater scope. It hands significant delegated powers to ministers, allowing them to make changes to remedy supposed ‘deficiencies’ in both secondary and primary legislation through statutory instruments (SIs) and to implement the eventual withdrawal agreement. It also has major implications for the devolution settlements, as outlined in a previous blog post.

In the early hours of Tuesday morning the bill received its second reading in the Commons by the relatively comfortable margin of 326 votes to 290. However, the upcoming Commons committee and report stages, as well as the bill’s passage through the House of Lords, are likely to pose much greater difficulty for the government. On 13 September the Constitution Unit held a seminar to discuss the prospects. Chaired by the Unit’s Dr Alan Renwick, the panel comprised two experts on the dynamics at play: Mark D’Arcy, the BBC’s Parliamentary Correspondent, and Dr Ruth Fox, Director of the Hansard Society.

Dr Alan Renwick introduces the seminar

Mark D’Arcy

Mark D’Arcy focused his remarks on the party-political landscape in relation to the bill and the key types of amendments that are being brought forward.

On the party-political landscape, D’Arcy argued that the bill’s passage will be a drawn-out battle, but one that the government go into reasonably confidently. He said that 10 Downing Street is working hard to keep open links with all of the Conservative factions, and that none of them is seeking to kill the bill. The Tory ‘Remain’ contingent in the Commons is small, and they recall the infighting during the Major years; they therefore recognise that actively fighting Brexit would be ‘career death’. D’Arcy suggested that ‘Bregretters’ might be a more accurate term for this group as they do not actually seek to prevent Brexit. The House of Lords have expressed significant reservations about the bill, notably through the influential Constitution Committee, but D’Arcy predicted that they will be constrained by not wanting to be seen fighting against ‘the people’.

As soon as the second reading vote went through the Commons, queues were forming to put amendments forward. The ‘Bregretters’ put down several, led by the former Attorney General Dominic Grieve. The focus of their amendments was on overseeing the technical operation of the bill, particularly on identifying which SIs require thorough parliamentary scrutiny. Another group of amendments comes from the Labour ‘Remain’ group. These tend to be more ambitious – they keep open options for the future, for instance the option to remain in the Customs Union, or perhaps even the European Economic Area. Other groups have more niche concerns – for example, some MPs are pushing to entrench specific rights provided by EU law.

Continue reading

Citizens’ Assembly on Brexit: reflections on the first weekend

The Citizens’ Assembly on Brexit has just begun its work. The project’s director, Alan Renwick, here offers some initial, personal reflections on a highly successful first weekend.

The Citizens’ Assembly on Brexit has just completed its first weekend of deliberations. As an earlier post explained, the Assembly is a gathering of people from across the UK who have been randomly selected to reflect the make-up of the electorate. They are meeting over two weekends to learn about options for the form Brexit should take – focusing on the issues of trade and immigration – discuss what they make of these options, and draw conclusions. Their proposals will be written up in a report and delivered to policy-makers in parliament and government.

We knew by the start of the weekend that we had prepared well. We had selected a hotel at Manchester Airport with good facilities, a central UK location, and ready accessibility by road, rail, and air. Working with ICM, we had recruited the Assembly members. As we reported last week, that recruitment process went astonishingly well, allowing us to hit our targets for representing different parts of the population. To help guide our planning, we had gathered an Advisory Board who were superb in both their wealth of knowledge and their willingness to give up their time for the project, including academics and campaigners on both sides of last year’s referendum debate and people whose job it is to give balanced information on Brexit.

In consultation with the board, we had devised a plan for the Assembly and prepared briefing papers that set out the key issues in a balanced and accessible way. We had engaged Involve – perhaps the UK’s leading experts in facilitating this kind of event – to develop and deliver the programme of sessions for each weekend. We had assembled a line-up of speakers with vast experience and a healthy variety of perspectives.

Continue reading

Citizens’ Assembly on Brexit: how were the members selected?

The Citizens’ Assembly on Brexit – a group of citizens that will consider options for Brexit – meets for the first time today. In this post Alan Renwick, Rebecca McKee, Will Jennings and Aleksei Opacic explain the process by which members were selected to be representative of the UK electorate, both demographically and in terms of how they voted at the 2016 EU referendum.

Over two weekends this month in Manchester, the Citizens’ Assembly on Brexit – a group of around 45 citizens – will meet to learn about, deliberate on, and make recommendations relating to the options for Brexit. As we set out in a previous post, the Assembly follows a well-established model for fostering quality public deliberation around major policy decisions. One key feature of this model is the process through which the members are selected. They are not elected or allowed to self-select. Rather, they must be identified through a rigorous process of random selection designed to ensure that – so far as possible for a group of this size – they reflect the diversity of the wider population. This post sets out how we have done that for the Citizens’ Assembly on Brexit and what we can say so far about the results.

Basic principles

Our goal has been to secure a broadly representative sample of the population. The relevant population in this case is the UK electorate: the people who are entitled to participate in public decision-making in the UK. It is their views that need to be heard by policy-makers involved in deciding the UK’s approach to Brexit.

Achieving a representative sample is far from straightforward. It relies on careful planning and design, as well as reflection, long before an assembly takes place. The first step is to decide what it actually means to be representative of the population at large. This is normally determined through stratification: you decide in advance what proportions of certain groups must be included, or set minimum levels for people from each group. Past citizens’ assemblies in places such as Ireland and Canada have used various stratification criteria, including age, ethnic background, geography, social class, and employment status. Each characteristic can be treated more or less strictly, depending on the context of the assembly. All official citizens’ assemblies have required equal numbers of men and women. In Canada, which has specific issues with ethnic inequalities, assemblies have required minimum numbers of people from the First Nations.

The stratification design is only the first step. Next comes the process of finding people to fill the stratification quotas. We know very clearly that one potential method – allowing people to self-select into the assembly, doesn’t work. Those who opt in are usually very different from those who don’t, most notably in terms of their levels of political interest and participation: they are more likely to have an interest in politics and to be already engaged in political activities. Self-selection may also attract people with particularly strong views about the topic of debate. Additionally, they are more likely to be people with plenty time to attend: those without caring or childcare responsibilities, those who are older and retired, and also people who can afford to take the time off work. To avoid the major issues of self-selection into a citizens’ assembly, some method of random selection is required.

Continue reading

The European Union (Withdrawal) Bill: legal implications for devolution

The European Union (Withdrawal) Bill will begin its second reading in the House of Commons today. In this post Stephen Tierney considers the bill’s legal implications for devolution, noting that as currently drafted it will be almost impossible to articulate the boundaries of devolved competence once the Act has come into force.

The European Union (Withdrawal) Bill (‘the bill’), introduced into parliament on 13 July, will begin its second reading in the Commons today. Already constitutional problems are piling up, not least a potential impasse with the devolved legislatures. The bill has been called ‘a naked power-grab’ and ‘an attack on the founding principles of devolution’ in a joint statement by the First Ministers of Scotland and Wales. They also made clear that they will not recommend legislative consent for the bill as it stands. Michael Keating has addressed the policy implications of the bill on this blog. In light of discussions with UK and devolved parliamentary committees and other policy-makers over the summer, this post will consider the legal implications of the bill for the territorial constitution, in particular the changes it makes to devolved competence and the ramifications of the enormous secondary powers given to UK ministers.

The bill (clauses 10 and 11), makes provision for devolution, amending the Scotland Act 1998, the Government of Wales Act 2006 and the Northern Ireland Act 1998 in order to circumscribe closely the exercise of devolved powers in relation to the UK’s withdrawal from the EU. These provisions need to be read in light of two other sets of provisions within the bill. Those which seek to convert EU law into domestic law (clauses 2-6); and those which give powers to UK ministers and to the devolved administrations inter alia to change ‘retained EU law’ and to give effect to the withdrawal agreement by way of secondary powers (clauses 7-9).

Altering competence

All of this requires some brief contextualisation. The bill will of course repeal the European Communities Act 1972 (‘the ECA’) and end the supremacy of EU law across the UK. But in doing so, it will not expunge the vast body of EU law from the statute book. Instead it converts EU law as it exists at the moment of the UK’s withdrawal into domestic law; creating the new category of ‘retained EU law’. The competence of the devolved legislatures will upon passage of the Withdrawal Bill be redrawn by this category of ‘retained EU law’. Clause 11, in amending the three main devolution statutes, in effect puts ‘retained EU law’ beyond the competence of the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly. For example, the existing provision in the Scotland Act 1998 (s.29(2)(d)) that denies the Scottish Parliament competence to legislate incompatibly with EU law, is replaced with an equivalent restriction in relation to ‘retained EU law’.

Continue reading

The Citizens’ Assembly on Brexit: design and purpose

The Constitution Unit is leading a team running a Citizens’ Assembly on Brexit, which will meet over two weekends, starting with the weekend of 8–10 September. The Assembly will consist of around 45 UK citizens, selected to reflect the diversity of the UK electorate. Alan Renwick and Rebecca McKee explain how the Assembly will work and what it is hoped will be achieved.

The Constitution Unit is leading a team of academics and democracy practitioners who will run a Citizens’ Assembly on Brexit over the coming weeks. As the name suggests, a citizens’ assembly is a group of citizens who are chosen to reflect the diversity of the population at large and who gather to learn about, discuss, and draw conclusions on some aspect of public policy. The Citizens’ Assembly on Brexit provides an opportunity to shed light both on public priorities for Brexit and on the value of deliberative exercises in a polarised political context.

How the Assembly will work

The Citizens’ Assembly comprises around 45 UK citizens who have been selected through a stratified random sampling process to reflect the diversity of the UK electorate. Perfect representativeness is unattainable in a group of this size, but the members closely mirror the wider electorate in terms of sex, age, ethnicity, social class, region, and how they voted in the referendum last year. We will shortly publish a more detailed account of the selection process on this blog.

The Assembly members will meet over two weekends, starting with the weekend of 8-10 September. This is relatively short for a citizens’ assembly: some past assemblies have met for as many as twelve weekends. But it allows a structured approach to considering the matters in hand. During the first weekend, the Assembly members will hear about the issues from a diverse range of experts with widely differing views. They will be able to quiz those experts and begin to consider their own reactions to what they have heard. Between the weekends, the members will have the chance to digest this material and perhaps talk it over with family, friends, and colleagues. They will then return after three weeks for the second weekend, when they will deliberate in depth among themselves on the options and what they think of them. In all of this, they will be supported by professional facilitators from Involve, who will have a crucial role in keeping the discussions on track and ensuring that all members can take part fully.

The topic of discussion is the form that Brexit should take. The Assembly does not attempt to reopen the question decided by last year’s referendum: the presumption is that the UK is leaving the EU. The goal is to deepen understanding of informed public opinion on the kind of relationship that the UK should be seeking with the EU after Brexit. Not all aspects of Brexit can meaningfully be discussed in two weekends, so the Assembly will focus on two issues of crucial importance: trade and immigration.

Continue reading

To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

Continue reading

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

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.

Continue reading