Of human rights and Brexit: the importance of the EU Charter.

Yesterday, as you may be aware, was Day Two of the Commons’ consideration of the Lords amendments to the European Union (Withdrawal) Bill. Lords amendments that were up for debate in the House included Amendment no. 1 (to prevent the repeal of the 1972 Act unless the UK government sets out plans to negotiate a continued customs union post Brexit); amendment no. 51 (to oblige the UK government to prioritise continued participation in the EEA during the negotiations); and amendment no. 5 (to allow for the transposition of the EU Charter of Fundamental Rights into domestic law post Brexit). I had been glued to the Commons livestream and BBC Parliament throughout Tuesday (13 June), Day One of consideration, and Wednesday, Day Two of same.

Yesterday, I recalled how I had followed as the Lords inflicted defeat after defeat on the UK government on the Bill. I remembered feeling so utterly relieved that vital issues had been raised in the Lords, and that important amendments had been tabled to the Bill (including an amendment to uphold the provisions of the Good Friday Agreement, to allow for continued North-South co-operation, and to prevent a hard border on the island). I had felt so frustrated at the government’s lack of consideration of such pressing issues, at their continuous intent to pursue a hard Brexit, at their seemingly haphazard Brexit policy. To see the Lords debate and consider the issues which the government seemed intent to ignore was refreshing and uplifting. Finally, I thought, finally issues like the Good Friday Agreement and the need to prevent the imposition of a hard border in Ireland were being considered and would be inserted into draft legislation. Finally, human rights and equality protections were being recognised, and tabled for inclusion in the draft legislation.

You see, the outcome of the European Referendum in the United Kingdom which led to the Brexit result always had vast political, economic and social implications. There remains, however, considerable uncertainty as to what those ramifications will be – including the implications for human rights standards and protection. This uncertainty has not been helped by the repeated dismissals of the UK government that human rights and equality protections would not diminish – even as the White Paper on the then-named Great Repeal Bill was published, with the deliberate ommission of the EU Charter.

The European Union (Withdrawal) Bill when introduced in the Commons last year in accordance with the White paper did not make provision for the retention of the Charter. The UK government considered then (and still does now) it to be an exception to the incorporation of EU law into UK law, with the Bill stating the Charter shall not be part of domestic law on or after exit day. The Bill states this does not affect the retention of any fundamental rights or principles which exist irrespective of the Charter. The UK Government has emphasised that the Charter did not create new rights; rather it codified rights and principles already present in EU law.

This claim is inaccurate.

All EU member states have signed up to the European Union Charter of Fundamental Rights. The Charter was given legal status in 2007 through the Lisbon Treaty, and was introduced in December 2009. The Charter complements the European Convention on Human Rights (ECHR), and recognises at Article 52(3) that wherever Charter rights correspond to Convention rights, the meaning and scope of the rights are the same as those laid down by the Convention. This provision does not prevent EU law providing more expansive protection. Indeed, EU law has availed of this, as outlined below.

Now, the scope of the Charter is narrower than the ECHR, in that it applies the convention rights only to public bodies and only when they make decisions within the scope of EU Law. Moreover, the Charter has not been incorporated into domestic law through the Human Rights Act 1998. However, in other respects, the Charter offers greater scope through enforcement at the Court of Justice of the European Union (CJEU). The CJEU can disapply national law and provide remedies. In contrast, recognised breaches of Convention rights in primary legislation can only lead to a declaration of incompatibility, thus leaving any remedy to Parliament. Moreover, the Charter also goes beyond the Convention in outlining social and economic rights alongside civil and political rights under the headings of dignity, freedom, equality, solidarity, citizen’s rights and justice.

Therefore, whilst rights similar to most Charter rights can be found in ECHR and domestic laws, it is important to note that similar is not necessarily the same. The Charter protects important rights that may not be fully secured by other sources.

The Charter is widely considered to be the most advanced document of its kind, and includes rights that cannot be found in any other directly enforceable fundamental rights instrument to which the UK is a party. Unlike older instruments, the Charter contains ‘third generation’ rights – such as to data protection and guarantees on bioethics – that have proven especially important in protecting people’s rights in light of rapid technological and societal change.

UK law does not have the domestic equivalent of the Charter, meaning there could be a gap in human rights protections for such outlined third generation fundamental rights ie socio-economic rights post-Brexit.

Lord Pannick moved the amendment in the Lords which sought to allow for the transposition of the Charter into UK statute post Brexit. He emphasised the significant protections it provides, the legal uncertainty that would be generated should it not be incorporated into domestic law, and the loss of rights protections which are not present in current domestic legislation. The majority of peers who voted on his amendment understood the significance of the Charter, and voted in favour of retaining it. And so the government was defeated.

The government had avoided an embarassing defeat previously in the Commons. In November 2017, the former Attorney General Dominic Grieve MP tabled an amendment that would have enshrined the EU Charter into UK law as part of the EU (Withdrawal) Bill. During the third day of debate on the Bill, the Solicitor General, Robert Buckland, said the UK Government was willing to work with Mr Grieve to see how rights under the Charter could be kept after Brexit, and would introduce its own amendment to this effect later in the bill’s passage. Mr Grieve said that was sufficient reassurance for him, and so he would not press for a vote on his amendment.

On the 5th December 2017, the UK Government published its Right by Right analysis of the Charter. The conclusion was that there would no weakening of rights protections post-Brexit, even if the Charter ceased to be part of UK statute. However, the UK Government’s Right by Right analysis, contrary to its aim, clearly demonstrates what will be lost when the Charter is abandoned. As highlighted by Liberty and Amnesty, the analysis cites the general principles of EU as providing equivalent rights -yet these are the very same principles whose enforceability is eroded by the European Union (Withdrawal) Bill.

In addition, the Equality and Human Rights Commission sought independent legal advice which found that, as opposed to the prevention of weakening of rights protections, rights would in fact be lost, such as those which do not have direct equivalents in other UK human rights law e.g a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity.

The Opinion concluded:
In summary, therefore, my principal conclusion is that the approach currently taken in the Bill does not achieve the Government’s stated intention that the protection of substantive rights conferred by the Charter will not be weakened. That intention can only be achieved by 13 incorporating relevant provisions of the Charter in the corpus of EU law which is retained after Brexit.

And so we come full circle, to Lord Pannick’s amendment receiving support from a majority of peers in the Lords, to that amendment returning to the Commons for a potential showdown in accordance with parliamentary ping pong. I followed the debate with interest.

In April this year, at the SDLP annual conference, I proposed my motion which included a provision to note with concern that the UK government’s EU (Withdrawal) Bill omitted to transpose the EU Charter of Fundamental Rights into domestic law upon withdrawal from the EU. I noted my concern that the government’s Brexit policy was not considering vital human rights and equality protections. My motion overall called for the prevention of any weakening of human rights protection post-Brexit.

I spoke in my capacity as the SDLP’s International Secretary, and said (half jokingly!) how since I was elected to the post, I had not stopped talking about the ramifications of Brexit to NI, but particularly my concerns about implications for human rights and equality standards.

Yesterday, I watched as the House of Commons voted by just twenty votes (321-301) to reject the amendment from the House of Lords to the EU (Withdrawal) Bill that would have incorporated the EU Charter into domestic law.

Watching as the vote was confirmed, I felt a crushing sense of loss.

The EU Charter provides for additional recognition and protection for third generation, fundamental rights, socio-economic rights such as workers’ rights (including collective bargaining). The Charter has allowed for the evolution of important rights we now take for granted. It has been a valuable addition to equality and non-discrimination law, specifically around LGBT rights, children’s rights, and rights of the elderly. I could not, and today I still cannot understand how MPs could vote to reject important provisions on human rights, equality, and non-discrimination protections.

I was disappointed, but sadly not surprised. After all, the party of government has long supported the repeal of the Human Rights Act 1998, and its replacement with a British Bill of Rights. Moreover, the Conservative party would also been keen to see the UK withdraw from the ECHR – a deeply concerning prospect.

No matter what the UK government, various ministers, or the UK government’s ‘right by right analysis’ state, UK law does not have the equivalent of the EU Charter. Excluding the EU Charter from the EU (Withdrawal) Bill, with the implication that it will not be retained post Brexit, will result in a significant reduction in human rights protections. There will be a gap in human rights protections for those third generational rights, those socio-economic rights, as well as generate legal uncertainty and confusion.

There will also be a specific impact on NI: the Good Friday Agreement provided that there would be an equivalence of human rights and equality standards across the island of Ireland. If NI loses the protections advanced by the EU Charter whilst the Republic retains them, then citizens in NI will suffer from a diminution of human rights standards, recognition, and protection. The UK government is a co-guarantor of the Agreement; it should be aware that its desire to refrain from incorporating the EU Charter into domestic law clashes with the Agreement.

The overall decision to leave the European Union has highlighted -and in conjunction with the UK government’s current Brexit policy, threatened -the Good Friday Agreement’s aim of ensuring an equivalent level of human rights protection across the island of Ireland. The potential loss of the Charter in conjunction with the ongoing absence of a Bill of Rights for Northern Ireland means human rights protections could be undermined. The UK government as a co-guarantor of the Good Friday Agreement must understand it has a responsibility to support the full implementation and realisation of all provisions of the Agreement, including those which require equivalent human rights standards and protections. Apparently, the UK government is not aware of this important responsibility.

At the SDLP annual conference, I concluded my speech by saying, “Theresa May says Brexit means Brexit. We must say human rights mean human rights.”

I am disappointed and frustrated by yesterday’s vote and the continuation of the UK government to pursue a purist Brexit ideology which is ignoring human rights and equality provisions. We deserve better. Our human rights deserve better.

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Davis/Barnier press conference after fifth round of talks.

(Given the recent Brexit developments, including the European Council summit and Theresa May’s Brussels dinner, I thought to share a summary of the last Brexit talks’ presser.)

Speaking after four days of negotiations, the Chief Negotiator for the EU, Michel Barnier, said the EU and the UK are in “deadlock” over the UK’s financial commitments, but progress could be made by Christmas.

Mr Barnier said the EU and the UK share the same objectives: protecting rights of EU citizens, safeguarding the peace process in Northern Ireland and getting a financial settlement.

Regarding citizens’ rights, he said there were two common aims: ensuring the withdrawal agreement has direct effect, and ensuring the interpretation of these rights is “consistent” between the EU and the UK. Both sides were working on this, and it would involve the European Court of Justice.

On the issue of the island of Ireland, Mr Barnier said the EU and the UK reached an agreement on the Common Travel Area (CTA). “Intensive work” had been taken on the Irish question, with more work to come. Both sides were examining North/South co-operation.

Mr Barnier said that on the issue of the UK’s financial commitments, both sides had reached “deadlock” which he described as “very disturbing”. With the UK still not ready to outline its commitments, he added this meant not enough progress had been made in the negotiations. Concluding his remarks, Mr Barnier said with political will, “decisive progress is within our grasp over the next two months”.

Following the EU’s Chief Negotiator, the Secretary of State for Exiting the EU, David Davis, said whilst there was still a lot of work to do, they have come a long way.

On citizens’ rights, they focused on ensuring how rights could be guaranteed in a fair way. The UK and the EU had not yet reached an agreement on how to enforce these rights, but various options were being examined and both sides were confident a deal would be reached.

Mr Davis said that with regards to the Irish question, more work was required but further progress had been made. Both sides have agreed to start working on common undertakings to protect the Good Friday agreement.

On the financial settlement, Mr Davis said that would be a “political issue”. Concluding his remarks, he stressed that both sides must discuss the future relationship, and expressed a hope that the European Council will allow Mr Barnier to let talks progress to discussing a future trade relationship.

Further talks over the next two months have been agreed.

News round-up: EU Withdrawal Bill, Northern Ireland, and Parliamentary sovereignty

Parliamentary sovereignty:

Tories’ £1bn DUP deal will need parliament’s approval [Politics Home]

The breaking news today sees a hurdle for the UK Government to pass. The UK Government has had to concede that its confidence and supply agreement with the DUP – which includes £1bn of funding for Northern Ireland – must have Parliamentary authorisation. In response to a letter from Gina Miller, and the Independent Workers Union of Great Britain who had challenged the deal’s legality, the Treasury solicitor, confirmed that the offer “will have appropriate parliamentary authorisation” and that as yet “no timetable has been set for the making of such payments”.

Stormont Stalemate addressed:

Secretary of State for Northern Ireland’s speech to 2017 British Irish Association Conference [NIO] Secretary of State for Northern Ireland, James Brokenshire, spoke at a recent meeting of the British-Irish Association in Cambridge. He spoke of the need to “see a fully functioning, power sharing devolved government at Stormont”, “need to address legacy issues”, and the “necessity of making a success of Brexit, to which the UK Government is fully committed.” Addressing the current political impasse at Stormont, Mr Brokenshire said “the situation simply is not sustainable and if it is not resolved within a relatively short number of weeks will require greater political decision making from Westminster.” He added that this would have to begin with legislation to provide Northern Ireland with a Budget.

More from the British-Irish Association meeting:

Simon Coveney urges UK to remain in Customs Union [BBC News NI] The Irish Foreign Minister, Simon Coveney, urged the UK government to consider remaining in a customs union with the EU after Brexit. He said he found it “difficult to accept” that the option should be ruled out before negotiations on trade have even begun.

Micheál Martin calls for NI to be ‘special economic zone’ [BBC News NI] The leader of Ireland’s main opposition party suggested that Northern Ireland should become part of a “special economic zone” (SEZ). Micheál Martin said Northern Ireland as a SEZ could be recognised by the EU as being “distinct from the rest of the UK in terms of single market and customs union access.”

Parliamentary Corner:

Brexit: Ministers warn of ‘chaos’ if repeal bill rejected [BBC News]

Voting against EU bill means ‘chaotic’ Brexit, claims David Davis [Politics Home]

  • The Commons will hold a special late-night sitting tonight as MPs cast their first votes on the European Union (Withdrawal) Bill. MPs will debate until midnight, before holding a series of votes on the bill’s second reading. Both sides expect a narrow win for the UK Government, with potential Tory rebels holding fire until the bill’s eight-day committee stage – due to start next month. In a statement issued overnight by the Department for Exiting the European Union, Secretary of State David Davis said those voting against the bill want “a chaotic exit from the European Union.” Labour says it will oppose the bill, claiming it represents a “power grab”.
  • Mr Davis said: “The British people did not vote for confusion and neither should Parliament…Providing certainty and stability in the lead up to our withdrawal is a key priority. Businesses and individuals need reassurance that there will be no unexpected changes to our laws after exit day and that is exactly what the Repeal Bill provides.”
  • The UK Government faces pressure from all sides of the House. MPs on all sides have raised concerns that Ministers are giving themselves too much power through so-called Henry VIII clauses, which allow them to change legislation after it has passed through Parliament.
  • Conservative whips are not the only ones facing a headache this evening/Tuesday morning. Some Labour MPs are hardcore Brexiteers, and will want to support the Withdrawal Bill – which would be in defiance of Leader Jeremy Corbyn’s imposed three-line whip.
  • Mr Corbyn’s authority might also face another challenge over the Bill. The question remains if any of the MPs from Brexit-supporting constituencies who, worried by Labour’s new-found ‘soft’ Brexit and the reaction to it from Labour-voting Brexiteers, might abstain on the vote.
  • The Commons will also vote to approve nominations for Select Committee membership today. The real drama re Committee membership is yet to come: the Committee of Selection’s membership approval vote takes place on Tuesday. The Conservative Government is facing accusations it is attempting a ‘power grab’.

EU corner

This week is about European Commission President Jean-Claude Juncker’s State of the European Union (SOTEU) speech, on Wednesday 13th September.

The Committee on Constitutional Affairs in the European Parliament will today discuss proposals to reduce the number of MEPs to 700 after the next election, keeping the remaining 51 in reserve for a possible pan-EU list of MEPs.

Barnier/Davis hold press conference after second round of Brexit talks

Speaking after four days of negotiations, the Chief Negotiator for the EU, Michel Barnier, today said there has been no “decisive progress” on the key issues in the ongoing Brexit negotiations.

Opening the joint press conference this afternoon, Mr Barnier noted that at the beginning of the week he publicly voiced his concern at the pace of and (lack of) progress in the talks. He warned that “time is passing quickly”, noting that on the 29th March 2019, at the stroke of midnight, the UK will officially leave the EU.

Mr Barnier queried whether an organised “properly, orderly exit for the UK” would take place, or would the UK exit without an agreement. He said it was in the interests of Europe for the UK to leave with an established agreement.

Mr Barnier said firmly that UK demands regarding access to the Single Market were “impossible”. Worryingly for the UK Government, who are keen to start discussing future trade arrangements, he said he was “quite far” from being able to say to EU leaders in October that sufficient progress has been made to move the talks on at that point to cover the future trade relationship. As protecting the integrity of the single market is central to his mandate, the Single Market “must not and will not be undermined by Brexit”.

Concluding his remarks, Mr Barnier said that this week it had become clear that the UK does not accept that it needs to recognise its financial obligations after Brexit. He noted that, going forward, he is prepared to intensify negotiations.

Following the EU’s Chief Negotiator, the Secretary of State for Exiting the EU, David Davis, spoke of “concrete progress” in a number of areas but added there was some way yet to go.

Mr Davis said the UK’s approach has been informed by a series of detailed papers, offering pragmatic solutions and proposing options, not a single approach. He said the UK Government will publish a comparison on the UK and EU positions in due course.

Mr Davis said issues relating to withdrawal and the future relations are “inextricably linked”, and central to this process must be a desire to deliver the best outcome.

On the financial settlement, Mr Davis said the UK has a duty to taxpayers to “interrogate” the EU’s position, which its negotiators did this week. Whilst the UK has a different legal stance, it accepts that there must be a settlement in accordance with the law, and in the interests of the future relationship. There are “still significant differences” to be bridged.

Describing the third round of talks as productive, Mr Davis said there was a high degree of convergence on Ireland, and on CTA. There had been almost complete agreement on privilege issues, and on confidentiality.

Concluding his remarks, Mr Davis expressed his hope both sides would continue to work together constructively. He added that further papers would be published by the Department for Exiting the European Union in the coming weeks.

And with that, it is apparent that the European Council meeting, 19th – 20th October, is a key date for the UK Government, as EU leaders seek to determine whether the ‘sufficient progress’ test has been passed.

HL EU Committee publishes Brexit: devolution report

The House of Lords EU Committee has today (19 July 2017) published its report ‘Brexit: devolution’ which examines the impact of Brexit on the devolved institutions.

The key message of the report is Brexit presents fundamental constitutional challenges to the United Kingdom as a whole. Therefore, the UK, Scottish and Welsh Governments, and – ‘if it is formed’ – the Northern Ireland Executive, will have to set aside their differences and work constructively together to achieve an outcome that ‘protects the interests of all parts of the UK’. The report submits that no durable solution will be possible without the consent of all the nations of the UK.

The report’s conclusions for Northern Ireland included (see chapter 3, para 93-99):

  • Due to Northern Ireland’s ‘distinctive’ geographical, historical, political, and constitutional circumstances, it will be ‘profoundly affected’ by Brexit. There will be a significant impact, including on cross-border trade, the agri-food sector, energy, transport, fisheries, access to EU labour, healthcare provision, tourism, and police and security cooperation.
  • It appears the Brexit debate has ‘undermined political stability and exacerbated cross-community divisions, contributing to the collapse of the Northern Ireland Executive and the calling of an early Assembly election’. This, together with the Conservative-DUP confidence and supply agreement at Westminster, and with no nationalist MPs having taken their seats in the new Parliament, ‘has created new uncertainty, underlining the fragility of the political settlement in Northern Ireland’.
  • Political stability in Northern Ireland must not be allowed to become ‘collateral damage’ of Brexit.
  • The specific circumstances in Northern Ireland give rise to unique issues that will need to be addressed during the Brexit negotiations.
  • The unique nature of UK-Irish relations necessitates a unique solution. The report welcomed the European Council’s commitment to seek “flexible and imaginative solutions”, and asks the UK Government to work with the EU negotiators to identify and outline such solutions as a matter of priority.

It is interesting that the EU Committee acknowledged that the use of the phrase ‘special status’ in respect of Brexit is a politically contentious term for unionists, who do not want Northern Ireland’s place in the UK to be undermined. The Committee did however advocate consideration for the specific circumstances in Northern Ireland, which give rise to unique issues. The report finds that these issues, including the issue of the border on the island of Ireland will need to be addressed during the Brexit negotiations.

 

The Repeal Bill Cometh.

The ‘Great Repeal Bill’ promised by the Prime Minister in October 2016 will be published today, Thursday 13th July.

It will repeal the 1972 European Communities Act, and repatriate EU law into British law, thereby ending the general supremacy of EU law.

The Bill, described by the Prime Minister as an “essential step” to EU withdrawal, was the centrepiece of the Queen’s Speech.

When published, its short title will be different as value-laden terms such as ‘great’ are not permitted in legislative titles. It is expected to be titled the European Union (Withdrawal) Bill.

Once it is introduced to the UK Parliament, it will be scrutinised through debates in the Houses of Commons and Lords, and more detailed line-by-line scrutiny in select committees. Amendments can be made to the bill. Both the Commons and the Lords will need to approve the bill, with any amendments, before it can be passed.

Even if the Bill is relatively short, the scrutiny process may take some time if previous examples of EU bills are any guide – remember the legislation to ratify the Maastricht Treaty?
This follows on from the white paper published by the Department for Exiting the European Union on 30 March 2017 which set out the objectives for the proposed Great Repeal Bill:

  • Repeal the European Communities Act (1972) on the day the UK leaves the EU,
  • Replicate some 20,000 pieces of EU law onto the UK statute book,
  • Convert directly-applicable EU law (EU regulations) into UK law,
  • Preserve all the laws that have been made in the UK to implement EU obligations,
  • Ensure the rights in EU treaties that are relied on directly in court by an individual will continue to be available in UK law,
  • Historic European Court of Justice case law will be given the same binding, or precedent, status in UK courts as Supreme Court decisions, and
  • Create powers to make secondary legislation under statutory instrument procedures.

The White Paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster has to be compatible with those passed in Brussels.

It also says that past judgements of the European Court of Justice (ECJ) will be downgraded in status after Brexit. ECJ judgements will have no role in the interpretation of laws passed by Parliament after the UK has left the EU. Pre-Brexit ECJ judgements will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases.

The role of post-Brexit ECJ judgements on pre-Brexit laws is still unclear.

Issues might arise with the two ‘D’s: delegated powers and devolution (remember the devolved states in all of this Brexit mess?)

Regarding delegated powers, the White Paper submitted that a “prohibitively large amount of primary legislation” would be required to make all the necessary changes to the body of EU law. Therefore, it will “provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The UK Government has acknowledged there will need to be some constraints on how ministers can use secondary legislation to change the law. The problem is that the White Paper is vague about what these constraints will be. For instance, the White Paper acknowledges that ministers’ new powers will have to be time limited, but does not actually discuss what these time limits will be.

The UK Government therefore is seeking a “discussion between Government and Parliament as to the most pragmatic and effective approach to take” on powers.

The issue of devolution poses another headache. The White Paper committed to “intensive discussions with the devolved administrations” about how policy powers repatriated to the UK from the EU will be distributed between the various states which comprise the UK.

Per the Queen’s Speech, the Bill committed to “maintaining the scope of devolved decision making powers immediately after EU-exit” and “having intensive discussion and consultation with devolved administrations on where lasting common frameworks are needed”.

Following the Speech, Prime Minister Theresa May appeared to admit that the consent via Sewel motions of the devolved parliaments may need to be sought before the passage of the Bill. Indeed, the Scottish Secretary David Mundell has recently echoed his previous assurances that a Legislative Consent Motion would be required for some parts of the Bill which are relevant to devolved competences. Other Brexit may also require Legislative Consent Motions.

Confused? You are in good company. For all this has raised the prospect that one or more of the devolved administrations could block the Bill if it does not propose that repatriated powers do not flow directly to them. And even better, there is uncertainty over the extent to which this vote could derail the Bill.

Why bother with such a Bill, it might be asked. Well, EU law covers areas such as environmental regulation, workers’ rights, and the regulation of financial services. Without the Repeal Bill, when the UK withdrawals from the EU, all these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in the UK statute book and leading to uncertainty and confusion. By carrying EU laws over into UK law, the UK Government plans to provide for what David Davis, Secretary of State for Exiting the EU, calls ‘a calm and orderly exit’ from the EU, while giving the UK Government and UK Parliament time to review, amend or scrap these laws in future.

Essentially, The purpose of the Bill is to provide certainty and continuity, ensuring the same rules and laws apply immediately after Brexit wherever possible, and supporting a smooth transition.

MPs will not have an opportunity to vote on the Bill until the autumn. This is perhaps good news for the Conservative government, which knows it will face stiff opposition to the bill. Indeed, it feels as though all parties in the Commons (sans the DUP, who have pledged to support the UK Government in all matters Brexit as part of their confidence and supply agreement) will unite in some form to make the Bill’s progress through Parliament hell for the Prime Minister.

The Labour Party, for example, has vowed to try to wreck the Brexit process by voting against the flagship “Repeal Bill”, unless Theresa May makes dramatic changes.

The Opposition usually gives the Government opportunity to change a Bill between its second and third reading, which would have postponed a Commons flashpoint until next year.

Yet Labour is arguing that government ministers have plenty of time to make those changes before second reading in October.

Keir Starmer, the party’s Brexit spokesman, said recently Labour would attempt to defeat the legislation in just three months’ time. Labour disagrees with most of the Bill’s contents, and is demanding the Bill includes full protection of rights for British workers and consumers, of environmental standards and the devolution of powers across the country. It is also determined to prevent a Government power grab through the use of delegated ‘Henry VIII powers’, allowing future changes without proper Parliamentary scrutiny.

Labour does accept it will not be able to defeat the Bill at its second reading, anticipated to be in October, without a revolt by some Conservative MPs, given Ms May’s working Commons majority of 12. However, it is hoping to play a game of ‘divide and conquer’ – the party believes it will be very difficult for the ten Scottish Conservative MPs to support the Repeal Bill without strong guarantees on devolution.

And it is not just Labour who is promising a difficult path for the UK Government. The Liberal Democrats, who after all fought the general election on a pledge to stage a second referendum on Brexit, also said they would make the passage of the Bill “hell”.

The publication of the Bill today is merely the first step in a long and complex journey for the Conservative Government. The real Parliamentary showdown will not be today. It will be come the autumn.

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.