Miller, the European Union Withdrawal Bill, and the Non-explanatory Notes
In her blog posting of January 24th 2017 about the decision of the Supreme Court in the Miller case, Professor Sandra Fredman very rightly observed that:- ‘One of the most disturbing consequences of the referendum has been the insistence that the Government is entitled to exercise its powers in relation to Brexit without involving Parliament. It is therefore of immense importance that the Supreme Court in Miller stepped in to protect the power of Parliament against the executive.’
It was, however, greatly to be feared that this vindication would be a purely formal one, giving rise to a carefully pre-planned and orchestrated exercise of Parliament’s power only serving to confirm its real subordination to a government invigorated by a sense that it was expressing ‘The Will of the People’. The majority judgement in Miller in effect admitted that this was the prospect:- ‘What form such legislation should take is entirely a matter for Parliament. …[T]he fact that Parliament may decide to content itself with a very brief statute is nothing to the point’ (para 122). That, I think, was a polite way of referring to the Government’s evident determination that this was exactly what Parliament would be called upon to do.
Such fears seem to have been more than realised: a tersely formulaic European Union (Notification of Withdrawal) Bill was presented within two days of the Supreme Court’s decision, and was taken through its Second Reading in the House of Commons on February 1st even before the supporting White Paper was published (on the following day). It seems very clear that the Government is seeking to ensure that this Bill will be passed into law as soon as possible and without amendment.
A strong indication of this peremptory set of intentions on the part of the Government is to be found in the set of Explanatory Notes which were annexed to the Bill. This document is so dismissively cryptic that I think these could best be characterised as the Non-Explanatory Notes. Thus, under the heading of ‘The Financial Implications of the Bill’ it is simply stated that ‘The Bill is not expected to have any financial implications’ (para 22). Under the heading of ‘Compatibility with the European Convention on Human Rights’, it is equally blithely asserted that ‘It is considered that the provisions of the Bill are compatible with the Convention Rights’ (para 24). Nothing is said by way of exposition of these assertions. Because the Bill is being expedited or ‘fast-tracked’ through Parliament, the Explanatory Notes have to say whether mechanisms for effective post-legislative scrutiny and review are in place, and, if not, why the Government judges that their inclusion is not appropriate. Under this head it is almost insultingly said, again without any supporting exposition, that ‘The impact of the Bill will be both clear and limited, therefore mechanisms for post-legislative scrutiny are not necessary’ (para 14).
If taxed with the question of whether these assertions amount to an affront to the Parliamentary process, I imagine that the Government would respond, if it deigned to do so at all, that these criticisms mistake the nature of the Bill, because the Act which it proposes would simply authorise the giving of the Notification to Withdraw from the European Union under Article 50 of the TEU without itself carrying the consequences which that withdrawal would involve. Such a response would, however, be belied by another paragraph in the Notes themselves, namely paragraph 18:- ‘The power that is provided by clause 1(1) applies to withdrawal from the EU. This includes the European Atomic Energy Community (‘Euratom’), as the European Union (Amendment) Act 2008 sets out that the term “EU” includes (as the context permits or requires) Euratom (section 3(2)).’ This rather elliptical proposition asserts that withdrawal from the EU would automatically include or effect a withdrawal from Euratom; its utterance in these Notes has caused consternation in the relevant scientific and industrial communities, where it is being viewed as the announcement in all but name of an early decision on the part of the Government as to what one of the consequences of the UK’s withdrawal from the EU will be.
The conclusion about Euratom which is embodied in paragraph 18 of the Notes may or may not be legally controvertible: that is a question which would seem at this stage to be open to possible doubt, and in any case there has been no opportunity for discussion of it in Parliament. The following questions are therefore posed. If, on the Government’s own avowal in paragraph 18, the withdrawal from Euratom will follow as a specific consequence of the withdrawal from the EU which is ineluctably set in train by the Bill, and given that it is clear that withdrawal from Euratom would in and of itself have extensive financial effects, how can the proposition in paragraph 18 be reconciled with the assertion of paragraph 22 of the Notes that the Bill is not expected to have any financial implications?
If, on the other hand, there is still a great need for the regulatory implications of withdrawal from Euratom to be identified and addressed, how can paragraph 18 be squared with the statement in paragraph 14 that the impact of the Bill will be both clear and limited, so as to render post-legislative scrutiny unnecessary? These questions are symptomatic of contradictions which lie at the heart of the Withdrawal Bill itself, but of which limitations of space preclude the consideration in this blog posting. Suffice it to say that the concerns which it has been sought to raise in this piece are much more than merely presentational ones.