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Westlake Legal Group > House of Lords

Chris White: Time is getting extremely tight to pass all the required withdrawal legislation

Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

The clock is ticking. We’re running out of runway.  Whatever metaphor you wish to use, Parliament has an awful lot of legislating to do before 29th March if it wishes to complete the passage of the seven Brexit Bills, along with a large amount of secondary legislation.

Today, the Prime Minister will update the Commons, setting out the Government’s progress in negotiating with the EU following the passage of the two advisory amendments last month.  They instructed, though not mandated, the Government to seek to both remove the backstop (Brady) and avoid a No Deal scenario (Spelman/Dromey).

Since then, the negotiations have been less than productive, revealed in striking language in the Prime Minister’s letter to the Leader of the Opposition over the weekend.  In it, she stated that she was still seeking alternative arrangements to the backstop without specifying in detail what they were, and that negotiating a free trade deal as a third party outside of the Single Market was a “negotiating challenge”, which is somewhat of an understatement.

A month on from the meaningful vote on 15th January, whilst significant column inches are dedicated to the possibility of the Malthouse Compromise we are no closer to knowing if the EU is prepared to alter the existing deal.  Parliament is running out of time before 29th March, either to pass a Bill implementing an agreed deal, or to pass legislation ensuring the UK is ready for a No Deal Brexit.

The scale of the challenge

On 31st January, the Leader of the Commons quite rightly cancelled the February half-term recess, yet also scheduled a range of business in the Commons that, whilst important, didn’t progress No Deal legislation in any way.  This risk-averse programming is almost certainly down to the fact that, with negotiations ongoing with the EU, the Government doesn’t wish to give any opportunities in the House to amend legislation to include unhelpful and challenging amendments.  For example, there have been strong hints that amendments could be tabled to the Trade Bill in the Lords that would seek to keep the UK in a Customs Union.

If this is the case, and with reports suggesting that the next ‘meaningful vote’ is in around three weeks, in the week commencing 25th February, we may not see any more progress in the Commons on much needed No Deal legislation until a deal is reached that the House can agree on.

In terms of readiness, a number of No Deal preparation Bills have already received Royal Assent, including the Customs Act, the Nuclear Safeguards Act, the Road Haulage Act and the Sanctions Act.  However much more needs to be done. For a start, winning the meaningful vote is only the first step – the Government must then pass a European Union Withdrawal Agreement Implementation (EU WAIB) prior to 29th March to give legal effect to the Withdrawal Agreement.  However the Government must not put all its eggs in one basket, and in order to provide security in the event of No Deal should pass a further six Bills, and additional secondary legislation.

These Bills range from allowing the UK to enter into trade deals, creating a domestic agriculture and fisheries market, maintaining our healthcare agreements, giving powers to implement financial services regulations, to bringing EU citizens under UK law.

The current state of play is as follows:

Westlake Legal Group Chris-White-Brexit-Bills-Final Chris White: Time is getting extremely tight to pass all the required withdrawal legislation Withdrawal Agreement Trade Bill law immigration House of Lords House of Commons (general) Highlights healthcare Fisheries Farming EU Comment Brexit

As you can see from the above table, agriculture, fisheries, and immigration are well behind schedule and will need considerable work to pass before 29th March.  Equally, Trade has its own issues as outlined above.

The Government also has to pass around 600-700 statutory instruments, or secondary legislation, before 29th March to be ready, in addition to the above Bills.  The timetable for their consideration has increased in recent weeks and the Government might just be on track, but around 200 still have to be considered in the next few weeks. Certainly the SI committees are working overtime, and have significant reading ahead of them.  The Times’s Esther Webber reported one SI from BEIS was “636 pages long, weighs 2.54 kilos and covers 11 matters that would be expected to go in separate documents.”

Will the UK be ready in time?

There are 45 days left until 29th March, and Parliament will sit for 26 of them (not counting sitting Fridays), unless it chooses to add more sitting days to the calendar or change the business on Fridays from Private Members’ Bills to Government business.  If the deadline of 29th March remains in place, it is unlikely that the Government will be able to pass both the EU WAIB and the six remaining No Deal preparation Bills.

This will mean uncomfortable decisions about which Bills it has to prioritise, and whether workarounds can be found through alternative means.  The Trade Bill is probably the highest priority for the Government aside from the EU WAIB, but failing to set up domestic agriculture and fisheries markets prior to exit day, for example, will cause severe concerns and uncertainty in those sectors.  If Government, Parliament and the EU reach consensus about an amended deal, or agree to the existing deal, then it’s likely that there will need to be a short extension to Article 50 as passing the EU WAIB inside a month, whilst technically possible, would be extremely challenging.  However, the Government must continue to progress with the No Deal Bills over the next few weeks, or the UK faces running out of runway before 29th March.

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The ‘Meaningful Vote’ is yet another backfiring constitutional innovation

It has become something of a truism – albeit not one widely acknowledged by its advocates – that constitutional reforms seldom if ever have the effect intended by their architects.

Rob Ford sums it up nicely: devolution didn’t stabilise the constitution, improve governance, or weaken nationalism; the EU referendum hasn’t settled the issue (yet?); and the Fixed-term Parliaments Act has perversely strengthened the executive.

To this sorry list of ill-judged innovations, which might also compass Lords reform and, in time, the establishment of the Supreme Court, we must surely now add the ‘Meaningful Vote’, and by extension the broader idea that the executive’s traditional authority to conduct foreign relations should be usurped by the legislature.

Of course, this can seem counter-intuitive from the immediate perspective of a Brexiteer. Had Europhile MPs not extracted the Meaningful Vote from the Government, Theresa May would have been at liberty to conclude any deal she liked with the European Union. In tactical terms, the European Research Group certainly owe them thanks.

But as a rule it is best to avoid basing constitutional judgements on whatever immediately benefits your own team (*ahem*), and the charge that the UK’s negotiators aren’t being taken seriously is worth thinking about as we head towards a future which involves negotiating lots of new trade agreements and other treaties.

For all that Twitter likes to mock the Prime Minister for trying to ‘tear up her own deal’, her doing so is the logical consequence of the new regime MPs have imposed upon her. Yes, her team negotiated the version of the ‘backstop’ she then whipped Tory MPs to seek to scrap via the Brady Amendment. But the House of Commons had just overwhelmingly rejected her deal in terms which made clear that the backstop was the sticking point. What was she supposed to do?

And if the need to get the deal ratified by Parliament – not just through the Meaningful Vote but then through a specific Withdrawal Agreement Bill – didn’t completely undermine the Government’s position as negotiator, the Grieve/Cooper bid to have the House of Commons somehow take direct control of the negotiations would have finished the job. Such a move would effectively have given us a parallel, single-issue executive with whom Brussels would, presumably, have ended up negotiating instead.

Unlike some, I don’t believe that much of the political chaos of the last couple of years is necessarily a bad thing. The country is undergoing a jarring political adjustment, and there’s nothing wrong with a constitution which lets that process play out in the political arena rather than masking or smothering it.

But we should not allow the horror of the executive branch which seems to be nurtured by many constitutional reformers to leave us with arrangements which straightforwardly don’t work.

MPs can scrutinise and defeat Government legislation, investigate issues through select committees, and hold ministers to account in the Chamber. But there are some matters, including war and the conduct of foreign relations, to which the legislature is simply ill-suited, and where it performs badly when it oversteps its traditional role. It is not the case that any increase in the power of the legislature is a good thing.

Likewise, the supremacy of the Commons in our constitution comes from its ability – sadly hindered in fact, if not in theory, by the FTPA – to sack the Government. It has never rested in an ability for the mere balance of opinion amongst MPs to carry the day on an issue-by-issue basis – just as ‘parliamentary sovereignty’ applies to the will of the whole institution (Lords, Commons, and Crown), and does not imply that MPs alone must have a binding vote on this or that specific measure.

The Government can only be held accountable by the voters – or taken seriously by foreign counterparts, whether we be offering trade or armed intervention – if it has the powers to pursue its agenda.

The case for the executive must be made, and an urgent scheme of constitutional repairs (including, finally, the repeal of the FTPA) should be part of any post-Brexit Conservative programme. “Absolute monarchy regulated by regicide” is an analogy familiar to Tories in the context of our own leadership, and a similar principle remains the best means of reconciling effective government and democratic accountability in our constitution.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

The Prime Minister could prorogue Parliament, but almost certainly won’t

When I wrote earlier this month about the legislative pathways to Brexit, I was able to draw upon a wealth of expert advice to provide what we hope was a useful guide for those uninitiated in the minutiae of Commons procedure.

I felt the need only for a small, qualifying note of caution, namely that John Bercow might choose to rip up the rulebook and throw everything into chaos – as he proceeded to do that very afternoon.

No such detailed and authoritative counsel was immediately available this time. The constitutional law surrounding prorogation has apparently been a non-issue for such a long time that my usual sources had little further reading to suggest.

Moreover, as Mr Speaker has illustrated, theoretically clear constitutional mechanisms are quite capable of being sabotaged if the will is there. This piece will therefore be considerably shorter and, necessarily, more speculative than the above-mentioned one.

That said, the answer to the question “Could Theresa May prorogue Parliament?” appears to be “Yes” – although the Government would need to be very careful.

According to this page on the Parliament website, “The Queen formally prorogues Parliament on the advice of the Privy Council” – which in matters of this sort is represented by the Cabinet. Then she dispatches the Royal Commission, comprising five peers from the Privy Council, to the House of Lords to conduct the formal ceremony, and Parliament is prorogued.

This idea not only fits the descriptions I have found for how the process works, it also matches best to what happened in Canada in 2008, when the Governor General briefly prorogued the parliament there at the reqest of Stephen Harper’s minority Conservative administration.

Suffice to say, pursuing such a course of action in the current context would take an extraordinary degree of political will, not least because it would mean abandoning however much of the Government’s no-deal preparation legislation had not yet received Royal Assent. More importantly, a prorogued Parliament could not pass the Withdrawal Agreement Bill or even the Meaningful Vote. Prorogation only works as a means of delivering a no-deal exit.

Ministers would also need to take a very pro-active approach to protecting both the constitution and the Queen from the attacks this move would invite.

For example, the mechanisms themselves would doubtless come under attack from the usual constitutional change lobbies, allied to outraged europhile opinion. The move itself would be cast as another ‘constitutional outrage’, and whilst the bar for that has been set so low as to be meaningless that wouldn’t stop the charge cutting through if the Government did not have a strong, clear justification for its action and a pro-active attitude to selling it to the country.

There might also be arcane attempts to actually short-circuit the process of prorogation. One such – which hinges on the idea that the Cabinet is not actually able to represent the Privy Council in deciding the question – has already been floated as part of the parallel debate about whether or not the Government can effectively withhold Royal Assent from a bill.

I think that particular claim is handled well enough in the tweets below it, but ministers would be well advised to have sort of constitutional-law tiger team in place to foresee and forestall such efforts as much as possible.

Furthermore, since the Royal Commission includes the leaders of both Labour and the Liberal Democrats in the Lords, the latter of whom especially might not be willing to take part in the usual constitutional theatrics on this occasion, the Government ought to be sure of whether it can refill the ranks of the Lords Commissioner. It would be very unfortunate if the Queen were forced to become the first sovereign since Victoria to deliver the prorogation address in person in such circumstances as this.

In summary, then, a short-term prorogation strategy appears to be constitutionally viable. But it seems fantastically unlikely. If the Government does find its position in the Commons untenable, and were prepared to be as aggressive in pursuit of ‘no deal’ as such a course would require, a general election would almost certainly be its preferred course.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

How to measure the size of the Conservative rebellion this evening

Courtesy of Philip Cowley, here are some markers:

– – –

139:       The largest rebellion of modern British politics, over Iraq in 2003.  It was larger than any rebellion of any party since the Corn Laws.

95:         The largest Conservative rebellion of modern British politics. Occurred in 1997, over post-Dunblane gun control under John Major.

91:         The largest rebellion faced by David Cameron, over Lords reform in 2012.

81:         The largest rebellion over European policy by members of any party since 1945 – another Cameron rebellion, this time from 2011.

72:         The largest revolt faced by Margaret Thatcher. Over Sunday trading in 1986.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Our guide to how the Government can deliver its Brexit deal in Parliament. Or No Deal. And whether MPs can block the latter.

Yesterday evening’s Government defeat on the Finance Bill highlights a question especially pertinent now that Parliament has returned post-Christmas – namely, can MPs and Peers block Brexit.  And if so, how?

Remainers and Soft Brexiteers from both the major parties, as well as the Liberal Democrats and other smaller ones, have now made the first move in a procedural campaign against the Executive in hope of preventing a ‘no deal’ departure from the European Union.

Due to its nature as a ‘war of the rulebook’, it can be difficult for those unlearned in the mysteries of Erskine May to work out exactly what’s going on – a fact exploited by Downing Street, which is attempting simultaneously to persuade Brexiteer MPs that the alternative to the Withdrawal Agreement is No Brexit, and Remainers that the alternative is No Deal.

ConservativeHome has therefore attempted to puzzle out the procedural realities facing the Prime Minister and her opponents, both in the event that she wins the Meaningful Vote or loses it, to try and work out whether the Commons really can block a no-deal departure.

Winning the Meaningful Vote

On the face of it, this is the simplest path to an ‘orderly Brexit’. But even assuming that Theresa May can cobble together enough votes to pass the Meaningful Vote – which looks a long shot at the time of writing – the Government would still have several hurdles to overcome.

This is because it would need to pass a Withdrawal Agreement Bill to give legal effect to the deal. In strictly procedural terms, assuming that this was ‘walked in’ immediately after the Meaningful Vote, around mid-January, it might be possible to get it through the Commons by February recess. The Lords could then sit through recess in order to complete its passage in a timely manner.

Such a Bill would need to receive Royal Assent before exit day – ideally a couple of weeks before, in order to leave time for relevant statutory instruments (SIs) – but if it were progressing the Government would probably be able to secure a short extension of Article 50 in order to complete the process of bringing it into law.

But would its passage be orderly?  It really depends on the strength of whatever coalition the whips had managed to corral together to win the Meaningful Vote. Pushing for a deal with the backstop in its present form would immediately alienate the DUP, so the Government would have already lost its de facto majority in the Commons, even before Eurosceptic Tory rebels are factored in.

Therefore the Government would be dependent on a fairly substantial hypothetical bloc of opposition MPs, and would run the serious risk of having to accept some deeply unpalatable amendments in order to get the final bill over the line. Assuming that Labour, the SNP and the Liberal Democrats (plus the DUP) all whipped against, it’s not impossible that the Government could win the Meaningful Vote only to lose the Withdrawal Agreement Bill.

Result? The Government could try to legislate – again in collusion with opposition MPs – to somehow halt or delay Brexit, or we leave with the exit deal having no force in domestic law which, in this instance, would mean that it isn’t ratified and we leave without one.

Losing the Meaningful Vote

If the Government loses the Meaningful Vote (however many times it tables it) and then wants to proceed with Brexit, its only choice is some form of No Deal. As the UK’s exit from the European Union has already been legislated for in the EU Withdrawal Act, Brexit will occur by automatic process of law unless an alternative course is pro-actively and successfully pursued.

However, there are numerous pieces of legislation before Parliament which would make departure on such terms smoother and more orderly. As we saw yesterday evening, the Remainers’ strategy is to try to amend these bills in such a way as to rule out a no-deal outcome, or spook the Government into abandoning that course because it can’t pass the relevant legislation. These bills include:

  • Trade Bill.
  • Agriculture Bill.
  • Immigration and Social Security Co-ordination (EU Withdrawal) Bill.
  • Fisheries Bill.
  • Healthcare (International Arrangements) Bill.
  • Financial Services (Implementation of Legislation) Bill.
  • Several hundred SIs.

According to some sources, and contrary to some reports, the Government’s timetable for advancing this legislative agenda is in relatively good shape. Ministers have ‘triaged’ the list of bills and already got several key acts onto the statute book, including:

  • Taxation (Cross-border Trade) Act.
  • Sanctions and Anti-Money Laundering Act.
  • Nuclear Safeguards Act.
  • Haulage Permits and Trailer Registration Act.

They then did, a sift and have brought forward a second round of less-urgent legislation, which they hope to complete ahead of our departure in March.

Progress on statutory instruments (SIs) is also reportedly in hand, not least because in extremis there are mechanisms by which ministers can plead urgency to bypass the Secondary Legislation Scrutiny Committee. Furthermore, although the number of SIs which still need passing appears high compared to last year, many more – sometimes several thousand – have been passed in previous years.

The key question, in light of the parliamentary opposition, is the extent to which the Government is exposed on these bills. There are two parts to it.

  • Question 1) To what extent can MPs and peers amend Bills necessary for Brexit?

Under parliamentary convention, the Speaker will only accept amendments which fall within the ‘scope’ of a given Bill. The broader the issue a piece of legislation addresses, the greater the opportunity for amendments. Unsurprisingly, therefore, the Government has taken some pains to draft the no deal preparatory legislation as narrowly as possible.

This, combined with the poor politics of interfering in something like healthcare legislation, means that relatively little of the Government’s no-deal programme ought to be vulnerable to aggressive amendments.

This is one reason why the Remainers have broadened their campaign to other pieces of legislation, such as the Finance Bill, and that there is talk of doing things like docking ministers’ pay.

One hypothetical attracting particular excitement yesterday was the suggestion that the Commons could straight-up wrest control of the entire business from the Government by amending the standing orders and then passing a Private Members’ Bill (PMB) to force the Prime Minister to rescind Article 50 in the event that we reach the 29th of March without a deal.

However, a fearsome trinity of procedural sages – any reader interested in this topic really ought to follow Chris White, Nikki da Costa, and Christopher James on Twitter – seem quite convinced that it is impossible to seize control of the legislative agenda from the executive, and that, in any event, there aren’t any ways left in which to consider PMBs. And that even if neither of those things were true the backlog of pending PMBs is too great to be realistically bypassed. So we can probably afford to put this ‘game changer’ back in its box.

As for the actual no-deal legislation, the one possible point of vulnerability is the Trade Bill, which could return from the Lords freighted with amendments mandating that the Government seek a customs union, or another relevant outcome, which the Government would then have to try and dismantle in the Commons.

Another worry is that John Bercow casts aside any remaining vestige of respect for the traditional limitations of his role, not to mention the advice of the clerks, and starts to accept hostile amendments which would not in normal circumstances have been deemed in scope. Either circumstance leads us to…

  • Question 2) How important is it that these bills are in place by exit day?

If Remainers are able to thwart the Government’s programme, for example by forcing ministers to pull the Trade Bill lest they be forced to commit to Customs Union membership, the issue stops being a primarily legislative one and moves into the world of practicalities.

According to sources we have spoken to, there is very likely a good deal of ‘tolerance’ when it comes to getting a No Deal programme on the statute book. In the event that these bills haven’t received Royal Assent by exit day, their absence could often be ameliorated, at least in the short term, by work-arounds.

Once we had departed the European Union, moreover, any vexatious amendments would be rendered moot, so outstanding bills could probably be progressed relatively swiftly thereafter.

So can parliamentary guerrilla tactics block Brexit?

At the heart of the strategy being pursued by the Conservative Remainers and Soft Brexiteers, and allies in other parties, is yet another game of chicken. By depriving the Government of the legislation and authority needed for a smooth no-deal exit, they hope that the Prime Minister will lose her nerve and change course.

It’s important to emphasise that none of the tactics being discussed would actually force the Government to do that. If the Cabinet holds its nerve, no ‘Trump-style shutdown’ can prevent us leaving the EU on the 29th of March.

The only real way to force a change of course on Brexit is to replace the Government with another one prepared to rule out No Deal. The parliamentary arithmetic suggests that this is unlikely, not least because Jeremy Corbyn continues to keep Labour’s position vague and oppositional. Even were that to change, there are probably less than a handful of Conservative MPs prepared to countenance installing him in Downing Street, even for the sake of blocking ‘no deal’.

Absent that alternative, all the rebels can do is heap pressure on the Prime Minister and hope she buckles. There is no procedural trick that can force her hand.

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