The government seeks sweeping new powers to implement key elements at a later dateby Joe Marshall / October 22, 2019 / Leave a comment
On Monday night, the government published the long-awaited Withdrawal Agreement Bill—the piece of domestic legislation that is needed to implement the Brexit Withdrawal Agreement in domestic law. This was the first-time parliamentarians have seen the detail of the legislation, despite much of it having been drafted many months ago. The government now hopes to rush it through parliament, in order to meet its 31st October Brexit deadline.
The bill runs to over 110 pages, and includes detailed provisions on issues such as the financial settlement (or “divorce bill”), the transition period and how EU law in force today will operate at the end of it. However, how large parts of the Withdrawal Agreement will be implemented in domestic law remains uncertain.
The bill proposes that key parts of the Withdrawal Agreement are to be legislated for through secondary legislation at a later date—including many so-called “Henry VIII powers” that allow ministers to change primary legislation. For instance, almost all of the provisions needed to give effect to the citizens’ rights part of the agreement will be implemented through secondary legislation—including the statutory appeals process that will strengthen opportunities for judicial redress against decisions to restrict residence rights.
Likewise, the government plans to give itself broad powers to legislate for the new Northern Ireland protocol, and says very little about how the arrangements would be implemented in practice. A broad power also exists to deal with the so-called “other separation” issues—such as how goods placed on the UK or EU market under EU law before the end of the transition period are to be treated after transition ends. A sense of the scale of the powers involved is provided by the Delegated Powers Memorandum, published alongside the bill: at 104 pages it is almost twice as long as that for the government’s last flagship Brexit act—the EU Withdrawal Act—which was heavily criticised in parliament for the number and scope of the powers it included.
To some extent, giving the government such broad powers was always going to be necessary. The revised Northern Ireland protocol was only recently agreed between the UK and EU—leaving little time to draft detailed legislation, and how the protocol would work in practice depends in part on what legal arrangements are in place when it comes into effect,…