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A brief Brexit Bill: what now?

Daniel Greenberg

30 Jan 2017

The European Union (Notification of Withdrawal) Bill has been kept extremely short, being confined to a proposition allowing the Prime Minister to trigger Article 50 and a saving proposition (discussed below). The brevity of the Brexit Bill is understandable given that the Bill has a single purpose, to give effect to the judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union.

Doubtless the legislative drafter and Ministers were anxious to keep the Bill as short as possible, to expose as little flank as possible for the tabling of amendments during the passage of the Bill through the two Houses of Parliament. In practice, however, it will not be difficult for Members of either House to craft a wide range of amendments on topics of interest to them in a way that makes the amendments both compliant with the rules of order and (in the Commons) selectable.

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A technique that has been used in previous similar bills (notably the Maastricht Bill) is to add something to the proposition allowing the Prime Minister to notify withdrawal along the lines of “but before doing so she must be satisfied that…”, or similar. Another favourite technique for constitutional bills is to add a new clause requiring the Prime Minister to make a report to Parliament on a specific matter before using the power provided by the Bill. The second technique is more difficult for the Government to resist, as it appears more innocuous by not being framed as a limitation on the power provided by clause 1(1).

Although one understands the reason for the brevity of the Brexit Bill, some may feel that the Government has been taught a lesson about the dangers of brevity by the Supreme Court in the Miller case: had a short statement about the effect of the result of the referendum been included in the Bill providing for the referendum process, the entire Miller saga would have been avoided.

In this case, however, the Government has limited the additional provisions to a saving that the permission to notify withdrawal “has effect despite any provision made by or under the European Communities Act 1972 or any other enactment”. The precise purpose of this provision is more than a little obscure, and the “Commentary on provisions of Bill” in the Government’s Explanatory Notes to the Bill deliberately avoids giving any indication as to its precise target and simply parrots the provisions of the subsection itself. One can presume that the general intent of the provision is to avoid some kind of Anisminic circumvention of subsection (1) by reference to, in particular, the 1972 Act or the Human Rights Act 1998.

A very large number of amendments can be expected in both Houses of Parliament

Attempts to oust judicial jurisdiction, which is what that would be in effect, are always, of course, perilous; and, also of course, if the intention is to prevent arguments along the lines of the restriction of fundamental rights contrary to the Human Rights Act 1998, the courts are likely on previous principle to decide that this could be achieved only by expressly targeted provision and not by general words of the “any other enactment” variety. Generally, extra words have a tendency to go wrong; and that is particularly likely to be the case when the Government feels that it has to hold its cards too close to its chest to permit the use of language that make the precise intention clear to the reader!

The Government has made clear its intention to pass the Brexit Bill through both Houses with considerable expedition in order to avoid delaying the target trigger-deadline of the end of March. A very large number of amendments can be expected in both Houses; partly in the hope of successfully amending the Bill, but more likely simply in order to facilitate later argument that the Bill has not been given sufficient scrutiny, with a view to the possibility of challenges of various kinds to the Government’s later action.

In the course of the passage of the Brexit Bill, the Government will need to resist amendments to the fundamental proposition in clause 1(1) because anything that imposes a legal restriction or condition on the Prime Minister’s ability to notify exit by triggering Article 50 would place the Government back where it started in Miller terms. Accepting an amendment requiring the making of a report would not have the same dangers and may become an attractive compromise solution – allowing one or more groups in Parliament to be able to demonstrate some kind of success without limiting the Government’s freedom of action – particularly since a White Paper on the mechanics of Brexit has already been promised.

Track the European Union (Notification of Withdrawal) Bill as it progresses through the legislative process with Westlaw UK.

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