Monday 29 January 2018

Brexit ~ Constitution Committee report + EU negotiating directives for transition

The House of Lords Constitution Committee has published its report on the European Union (Withdrawal) Bill - 9th Report Session 2017-19. This follows the committee's preliminary (7th March 2017) and interim (7th September 2017) reports.

The Bill as introduced to the Lords - HTML version.

The latest report states that legislation is necessary to ensure legal continuity and certainty when the United Kingdom leaves the European Union. The Committee
has not commented on the merits of Brexit, but concluded that the Bill, as drafted, has fundamental flaws of a constitutional nature. The Committee found that the Bill risks undermining the legal certainty it seeks to provide, gives overly-broad powers to ministers, and has significant consequences for the relationship between the UK Government and the devolved administrations. The Committee propose a number of recommendations to improve the Bill to make it more constitutionally appropriate and fit for purpose, while still meeting the Government’s objectives. [My emphasis].

The Bill passed through the House of Commons with only minimal amendment and Parliament has helpfully published a tracked version showing the amendments made by the Commons.  The House of Lords First Reading of the Bill takes place on 30th and 31st January - The Guardian 27th January.

Exit Day:

The meaning of "exit day" was amended.  This previous post looked at the situation as it stood when the Bill was first introduced to Parliament.  Clause 14(1) stated: “exit day” means such day as a Minister of the Crown may by regulations appoint (and see subsection (2));

As amended, Clause 14(1) now states: “exit day” means 29 March 2019 at 11.00 p.m. (and see subsections (2) to (5));

Significantly, subsection (4) states that - A Minister of the Crown may by regulations - (a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and (b) amend subsection (2) in consequence of any such amendment.

The Constitution Committee's report - Chapter 2 paras. 10 to 15 comments:-

10.In our interim report we raised concerns that the Bill contained no express provisions to constrain the scope of ministerial discretion to define “exit day” or that otherwise set criteria by which exit day was to be determined. We also noted that the Bill did not require that ministers prescribe exit day and the power to define exit day was exercisable by statutory instrument not subject to parliamentary procedure. We concluded that the power was “unduly broad in its scope and flexibility” and left open the possibility that ministers might provide through regulations that exit day meant one thing for one purpose and something else for another purpose.
11.The Government subsequently decided to stipulate exit day in the Bill. Steve Baker MP, Parliamentary Under Secretary of State at the Department for Exiting the European Union, told us “We wish to put into the Bill the reality under international treaty law of our exit day, which is as announced, and to give people clarity that there is one exit day and that it is 29 March 2019.”
12.Sir Keir Starmer QC MP, Shadow Secretary of State for Exiting the European Union, criticised the idea of fixing exit day in this way:
“the proposal to stipulate exit day is really problematic. We have gone from an overly broad position … where exit day is not determined, not necessarily overseen and could be on different days, to a position where it is absolutely fixed for all purposes. It has swung completely to the other side, and that is a mistake. The leave date is clear from the provision of Article 50. The exit date gets mixed up with the leave date, but the exit date serves a different purpose; it tells you when things have to happen in our domestic law for this whole exercise to work.”
He added that it “unnecessarily constrains the flexibility the Prime Minister might need in the latter stage of the negotiations.”
13.The Public Law Project suggested that “in the interests of legal certainty, ‘exit day’ should be defined as ‘the day on which the UK ceases to be subject to the EU Treaties.’ This would allow sufficient flexibility for there to be a transition period while also enhancing legal certainty and appropriately limiting the period for which Ministers may exercise the extensive delegated powers contained in the Bill.”
14.The Bill was subsequently amended in the Commons to define exit day as 11pm on 29 March 2019, while giving ministers the power to amend that definition “if the day or time on or at which the Treaties are to cease to apply to the United Kingdom in accordance with Article 50(3) of the Treaty on European Union is different.”
15.The revised definition of “exit day” in the Bill sets appropriate limits on ministerial discretion and provides greater clarity as to the relationship between “exit day” as it applies in domestic law and the date on which the UK will leave the European Union as a matter of international law. It also allows the Government a degree of flexibility to accommodate any change to the date on which EU treaties cease to apply to the UK.

Other aspects of the report will be considered in a later post.

EU General Affairs Council (GAC) :

EU27 ministers have adopted a new set of negotiating directives for the Brexit negotiations, which detail the EU27 position regarding a transition period. According to the EU position, during the transition period the whole of the EU acquis will continue to apply to the UK as if it were a member state. However, the UK, as already a third country, will no longer participate in the institutions and the decision-making of the EU. These negotiating directives provide the Commission with a mandate, as the EU negotiator, to start discussions with the UK on this matter.
and also see General Affairs Council (art 50) - 29th January 2018 

Extending (by agreement with the EU27) the period for negotiations might appear to many to be a more acceptable way forward than a "transition period" but, so far, the British government has set its face against requesting such an extension.

Key points .....

The proposed end date for the transition period in the negotiating directives is 31 December 2020.

According to the EU position, during the transition period the whole of the EU acquis will continue to apply to the UK as if it were a member state. Changes to the acquis adopted by EU institutions, bodies, offices and agencies during that period would also apply in the UK.

All existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply, including the competence of the Court of Justice of the European Union.

Concerning the area of freedom, security and justice, where the UK has a right to opt in and opt out of individual pieces of legislation, the current rules will apply for acts adopted during the transition by which the UK is bound before its withdrawal. However the UK will no longer be allowed to opt into new measures in this area other than those amending, replacing or building upon the ones he is bound before its withdrawal.  [Query - I think this should read "by which it is bound" or similar wording].

During the transition period, the UK will remain bound by the obligations stemming from the agreements concluded by the EU, while it will no longer participate in any bodies set up by those agreements.

As the UK will continue to participate in the customs union and the single market (with all four freedoms) during the transition, it will have to continue to comply with EU trade policy, to apply EU customs tariff and collect EU customs duties and to ensure all EU checks are being performed on the border. This also implies that during that period the UK will not become bound by international agreements in its own capacity in fields of competence of EU law, unless authorised to do so by the EU.

The UK, as already a third country, will no longer participate in the institutions and the decision-making of the EU.

The UK will no longer attend meetings of Commission experts groups, committees or other similar entities where member states are represented. Exceptionally on a case-by-case basis, the UK could however be invited to attend one of these meetings without voting rights.

Specific consultations will be foreseen with regard to the fixing of fishing opportunities (total allowable catches) during the transition period, in full respect of the EU acquis.

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