Jeff King is Professor of Law at UCL Faculty of Laws, and a Legal Adviser to the House of Lords Select Committee on the Constitution. In this long read, he explores the constitutional implications of the quick passage of the European Union (Future Relationship) Act. This piece is an expansion of a Twitter thread posted on 30 December, 2020 in reaction to the bill’s passage.
Harold Wilson once quipped that a ‘week is a long time in politics.’ So was 30 December 2020. On that day, the European Union (Future Relationship) Act 2020 was introduced to and passed by the UK Parliament. Having been published the day before, it cleared the way for the ratification of the trade and cooperation agreement signed by the European Union and United Kingdom on 24 December 2020. More importantly, it provided much of the machinery by which the commitments contained in those treaties would be given effect in domestic law. This blog post explores the constitutional implications of the Act and the quick passage of the Bill.
The Act permitted ratification without parliamentary oversight, by disapplying (in Section 36) the Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG Act 2010). The technique was used in Section 32 of the European Union (Withdrawal Agreement) Act 2020. In that case, however, there was full and proper scrutiny of both the Withdrawal Agreement and the Bill. As such, the 2020 Withdrawal Agreement Act is not a relevant precedent. The future relationship agreement is more important because it is not transitional and is more wide-ranging. Even so, ratification is probably not the main problem here. There needed to be some sort of ratification to enable the end of the ‘transition period’ on 31 December 2020 without defaulting to World Trade Organisation rules for trade.
Some suggest that the Government should have abandoned its statutory commitment in the 2020 Withdrawal Agreement Act to not extend the transition period. I respect that view and might have preferred it, but I don’t think it is inappropriate for the Government to have insisted on its deadline. Deadlines can produce outcomes that sunset bargaining evades. And parties are entitled to keep to their headline commitments. Further, parliamentary review of the end product, after the protracted nature of the previous negotiations, could hardly get the UK Government to go back and obtain any more than a marginally different result. As many have observed, unless Parliament is involved upstream rather than downstream, its impact on treaties will be limited.
In fact, an early version of the European Union (Withdrawal Agreement) Bill included a mechanism of parliamentary scrutiny of ongoing EU negotiations. It had been introduced on 21 October 2019 but later fell when that Parliament was dissolved on 6 November ahead of the 2019 election. It would have allowed just the kind of upstream commentary and involvement of Parliament and to a lesser extent the devolved authorities that the Constitution Committee has recommended as appropriate in its previous reports on treaties and Parliament. However, the election in December 2019 that returned a robust Conservative Party majority was evidently taken as a cue for Prime Minister Boris Johnson’s Government, which had had quite enough of parliamentary control over negotiations with Brussels by that point, to remove that role for parliamentary oversight. The Constitution Committee observed in para. 115 of its report on the Withdrawal Agreement Bill (where it also sets out the provisions of the abandoned scheme) that the removal of the role for parliamentary oversight was ‘a matter of regret.’ It was so in principle then, and in fact now.
The challenge of domestic implementation
The main mischief of the current Bill rather lies in the machinery of domestic implementation. Unlike parliamentary review prior to ratification under the CRAG Act 2010, Parliament did hold the power to influence this aspect of the current Bill somewhat significantly. I see three serious issues, apart from the devolution issues, which are more difficult to assess without fully digesting the treaty itself.
First, the Future Relationship Act incorporated significant chunks of the agreement into (and amending) domestic law when there was inadequate time to assess the implications. For example, section 26 provides that the Social Security Protocol (over 100 pages of treaty text), which few, if any, MPs will have digested, will ‘form part of domestic law’ and prevail over any inconsistent existing law. The same goes with section 22 in respect of the (shorter but still meaty) protocol on fraud in VAT.
Second, section 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 section 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 section 29 is deeply unsatisfactory, arguably worse than broad delegated powers that entail some parliamentary scrutiny when they amend primary legislation. Courts will be forced to grapple with the effect of section 29, and may be forced to read it down where it comes into any conflict with those statutes which might be said to fall into the amorphous category of ‘constitutional statutes’ or into conflict with what are more broadly being regarded as ‘common law constitutional rights’.
The caselaw is clear enough – the Act should not be able to impliedly repeal any of such statutes or abridge such rights using such a vague legislative formula. This is an example of how shoddy drafting (necessitated by the Government’s timetable rather than the competency of the Office of the Parliamentary Counsel) can produce just the kind of controversial judicial decision-making that this Government goes out of its way to criticise. It’s no answer, furthermore, to say that the section 31 powers I turn to next will be the main ones relied on in practice. Section 29 if anything discourages their use, because it provides that any change required of existing law will have already happened by operation of implied repeal. So why bring regulations before Parliament to do what is already supposed to have happened?
Third, the general implementation powers contained in section 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. make or designate a law-maker who can make new legislation not subject to any parliamentary scrutiny) and any change to the Future Relationship Act itself that is regarded by ministers as necessary to implement the agreement. Both of these features were quite controversial when the European Union (Withdrawal) Act 2018 was passed – the bootstrapping provision was removed from the Bill; a Lords amendment removed the tertiary legislation power but was reversed in ping-pong. The Schedule 7 eventually inserted into the 2018 Withdrawal Agreement Bill – a concession during passage – that a sifting committee be created to recommend upgraded scrutiny of draft statutory instruments. In the end, the new committee recommended upgraded scrutiny for many draft instruments and the Government complied most of the time. There was no time to consider that option here. More basically, section 31 powers are quite broad and the provisions of the Future Relationship agreement seem more nebulous than those of the Withdrawal Agreement.
So, what was the alternative?
The question is, and on the 30th of December was, were these broad powers simply necessary under the circumstances? The legal form was not necessary. If you compare the more tightly drawn provisions in Parts 1 (security) and 2 (trade and other matters) of the Act, you will see just how good legislative drafting can be done when proper timing allows. Part 3 is skeletal and Parts 1 and 2 are mostly not.
But isn’t it a reality that time did not allow more flesh on the bones? This is the crucial question. And I think the answer is that it was a political choice rather than legal or logistical necessity. The EU is providing provisional application pending ratification by the EU Parliament. The UK Government has technically enabled provisional application – or so it claims – presumably by operation of section 32, which allows the Government to suspend the provisional application of the treaty by way of regulations laid before Parliament. But that isn’t provisional application in any true sense because the default position is that the treaty continues to be in force and the CRAG Act 2010 requirements are disapplied from the existing treaty, rather than postponed. That is why the Bill wasn’t couched as being provisional approval when presented to the public or to Parliament.
At any rate, it is domestic implementation rather than parliamentary scrutiny of the treaties that is the central issue here. The whole of the domestic machinery could have been applied provisionally to allow the treaty to be applied either provisionally or in final form from 31 December 2020. Here is how: the Bill (amended or not) could have been passed as the European Union (Provisional Application of the Future Relationship Treaties) Bill, subject to a sunset clause causing the whole of it to retire within a period of months. When introduced, the Government could commit to introducing a similar but more filled-out scheme of legislation followed by weeks of legislative scrutiny. The second bill (or set of bills) would be coordinated with the first to ensure legal continuity. This approach would have given the drafters more time to tailor executive powers; MPs and peers time to actually read the agreement and bill giving effect to it; the Government the proper opportunity to consult and seek consent from the devolved authorities; and select committees the time to take evidence and compose reports. In short, it would have allowed Parliament to do its job.
In its necessarily brief report, the Constitution Committee has recommended post-legislative scrutiny of the resulting Act. It is the best we can do under the circumstances. Whether this will result in any more than tinkering with the scheme presented will depend on how seriously the Government takes the exercise and agrees to the modification of the arrangements under the existing Act. Since the new challenges of post-Brexit trade adjustments and the profound health and economic consequences of Covid-19 will be at the top of the menu of political headaches for 2021, I won’t be holding my breath.
Featured image by Pippa Fowles / No 10 Downing Street (Flickr, via CC BY-NC-ND 2.0)
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.