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Here are some thoughts about the constitutional implications of the EU (Future Relationship) Bill and some suggestions for what might have been done. Warning - blog post posing as THREAD.
First - the draft Bill is here and will be introduced into Parliament in the morning of the 30th: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/948181/20201229_Draft_Gov.uk_EU__Future_Relationship__Bill_.pdf
The Bill permits ratification without parliamentary oversight, by disapplying the CRAG Act (cl. 36). Also done in the EU (Withdrawal Agreement) Act 2020, but with full and proper scrutiny of both the withdrawal agreement and the Bill. The 2020 Act is not a true precedent.
Even so, ratification is probably not the main problem here. It is rather the machinery of domestic implementation contained in the Bill, which unlike the agreement Parl could influence significantly. I see three serious issues, apart from the devolution issues (more nuanced).
First, the Bill incorporates significant chunks of the agreement into (and amending) domestic law when there's inadequate time to assess the implications.
E.g. cl 26 provides that the Social Security Protocol (over 100 pages of text), which few MPs will have digested, will 'form part of domestic law' and prevail over any inconsistent existing law. Same with cl 22 in respect of the (shorter but still meaty) fraud/VAT protocol.
Second, cl 29 provides essentially that any change that is required to be made in UK domestic law in order to give effect to the agreements is deemed by cl 29 to have taken such effect.
Translation: We don't know what changes to the law are in fact required by this EU-UK agreement, but whatever they are, Parliament by operation of this clause makes them effective from the date this law comes into force.
The agreement is so broad and vague that this is deeply unsatisfactory, arguably worse than broad delegated powers that entail some parliamentary scrutiny when they amend primary legislation. It’s no answer to say that the cl 31 powers will be the main ones relied on in practice.
Third, the general implementation powers contained in cl 31 allow ministers to make any law that is required to implement the agreement by regulations - and that this power can be used to do anything an Act of Parliament can do (including amend the bill/Act itself).
It means such powers can be used to create tertiary legislation (i.e. designate someone to make new legislation not subject to any parliamentary scrutiny) and permit the amendment of the Future Relationship Bill/Act itself if regarded by ministers as necessary to implement.
Both of these features were quite controversial when the EU (Withdrawal) Act 2018 was passed – the bootstrapping HVIII power was removed from the Bill; a Lords amendment removed the tertiary legislation power but was reversed in ping pong.
The 2018 Act also provided – a concession during passage - that a sifting committee be created to recommend upgraded scrutiny of draft statutory instruments. No time to consider that here. More basically, cl 31 powers are very broad, rushed, and have controversial features.
The question is, are these broad powers simply necessary under the circumstances? The legal form is not necessary.
If you compare the mostly more tightly drawn provisions in Parts 1 (security) and 2 (trade and other matters) of the Bill, you will see how tailored legislative drafting can be done when timing allows. Part 3 (general implementation) is skeletal and Parts 1 and 2 are mostly not.
But isn’t it a reality that time doesn’t allow more flesh on the bones? This is the crucial question. And I think the answer is that that is a political choice rather than legal or logistical reality. The EU is providing provisional application pending ratification by EU Parl.
It is less straightforward to do this in the UK, and anyway it is domestic implementation rather than parliamentary scrutiny of the treaties that is the central issue here. But something analogous to provisional application in the UK can be done in the following way:
This Bill (amended or not) could be made into law but subject to a sunset clause causing it to retire within a period of months. At the same time, the Government could commit to introducing a more filled out scheme of legislation, followed by weeks/months of legislative scrutiny.
The second bill(s) would be coordinated with the first to ensure legal continuity. No legal gaps and legal certainty would be considered at all stages.
This approach would give the drafters more time to tailor executive powers, give MPs and peers time to actually read the agreement and bill giving effect to it, give the Government the proper opportunity to consult and seek consent from the devolved authorities,
and give select committees more time to take evidence and compose reports. In short, it would allow Parliament to do its job. THREAD ends (with apologies for length). These views are in personal capacity and don't reflect those of the Constitution Committee, which has reported.
