European Union: Great Repeal Bill – Two Out of Three Ain't Bad

Last Updated: 6 December 2017
Article by David Mundy and Aaron Nelson

Yesterday was probably the most dramatic Brexit day since the referendum result. The Prime Minister went to Brussels, and most expected an announcement that a deal had been done on the EU's three preliminary issues (divorce bill, citizens' rights and the Irish border), allowing the negotiations to move to the UK/EU27 future trading relationship.

However, it quickly became clear that no agreement had been reached, because the draft agreement text suggested that a 'frictionless' Irish border would be maintained through 'regulatory alignment' between Northern Ireland and the Republic. That led Arlene Foster, DUP leader, on seeing the draft text, to remind the PM that the DUP could not accept a compromise which treated NI differently from the rest of the UK - the union of the UK could not be jeopardised. The PM had to accept that - she is reliant on the DUP for her majority. Negotiations are to continue.

So, what's the answer?

The UK government has been clear for some time now on three aspects of Brexit:

  • that the UK is leaving the Customs Union;
  • that there is to be a frictionless border with Ireland; and
  • through its electoral pact with the DUP, that NI is not to be treated differently from the rest of the UK.

The problem for the UK government is that these three aspects seem logically inconsistent: any two aspects can be satisfied at once, but not all three.

Yesterday, the PM came unstuck in the negotiations because she managed to get balls (1) and (2) in the air - ie the UK could leave the Customs Union and have a frictionless border with Ireland, because NI would stay 'aligned' with EU regulation - but that meant she dropped (3), and so the DUP said 'no' (which, in turn, reminded many Brexiteer Tories that they were the 'Conservative and Unionist party').

That led some Remainers (eg Hilary Benn, Anna Soubry) to argue that the solution is for the whole of the UK to stay in the Customs Union – that gets (2) and (3) in the air, but the government has to drop (1) – and that would require a political u-turn.

On the other hand, Brexiteers (eg Jacob Rees-Mogg) seem to suggest that the PM drops (2) – allowing a UK/EU hard border in Ireland, but then ameliorating the effects using technology and the future free trade agreement. Critics say that will, at least, disappoint Ireland and, at most (and worst), see a failure of the NI peace process because it fundamentally undermines the Good Friday Agreement.

Today, the SSExEU, David Davis, appearing in Parliament to answer an urgent question on the matter, seemed to suggest that the solution is for the whole of the UK to maintain 'regulatory alignment' with the EU, saying that phrase means:

'mutual recognition and alignment of standards that does not mean the same standards but one that gives similar results'.

That approach, if that is now Government policy, raises a number of issues. First, given the UK is a smaller economy than the EU27, it seems inevitable that the UK will follow the EU's regulatory lead, rather than the other way round, and likely that the EU will require the UK to follow its lead closely (if the UK wants market access). That does not sound like 'taking back control'. Indeed, it sounds remarkably similar to the 'fax democracy' of the EEA, which the government has rejected.

Second, the EU has already made it plain that, even with regulatory alignment, the UK cannot be in position 'as good as' that of Member States - so there will be a price to pay, and not just a lack of involvement in setting standards and in regulatory bodies.

Third, there is the vexed question of who decides whether the UK's standards 'give similar results' - the UK won't accept the CJEU's jurisdiction; the EU may require it as the price of market access.

Time will tell whether 'UK-wide regulatory alignment' truly represents the Government's Brexit policy...

EU(W) Bill - Day 4

Meanwhile in Westminster, somewhat overshadowed by the dramatic Brexit negotiations, MPs were taking part in Day 4 of the Committee Stage of the European Union (Withdrawal) Bill.

As flagged up here, Day 4 saw MPs consider new clauses related to, and amendments to, clause 11 (and further consequential amendments to Schedule 3) which largely concerned devolution:

  • new clauses 64 and 65, and Amendments 42 and 337 (Jeremy Corbyn, Labour), to establish new procedures for the creation of UK-wide frameworks for retained EU law, including putting the Joint Ministerial Committee's role in the withdrawal process on a statutory footing, and establishing that the UK Government has only until the end of transitional arrangements to create any UK-wide frameworks;
  • amendment 42 (Jeremy Corbyn, Labour), to amend clause 11 to remove the Bill's proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters;
  • amendments 164 and 165 (Ian Murray, Labour), to replace the Bill's changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed;
  • amendments 90, 91 and 92 (Hywell Williams, Plaid Cymru) to remove the restrictions on the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly modifying retained EU law except in relation to matters that are reserved;
  • amendments 132, 133 and 134 (Tom Brake, Lib Dem) to remove the proposed bar on the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly legislating inconsistently with EU law after exit day;
  • amendment 72 (Ian Blackford, SNP) to require legislative consent motions by the devolved assemblies prior to clause 11 coming into effect; and
  • amendment 165 (Ian Murray, Labour) to replace the Bill's changes to the executive competence of the Scottish Ministers and Welsh Ministers in consequence of withdrawal from the EU, by removing the restriction on competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.

The Government defeated those new clauses and amendments which were put to a vote with the help of the DUP. However, the Government did state that it remained 'in listening mode', which suggests that the Government will itself bring forward amendments to Clause 11 at Report stage or in the Lords.

What's next this week?

Brexit negotiation continue, with the PM expected to be back in Brussels by Friday.

Day 5 of Committee Stage will be held on 6 December. MPs will be considering Clauses 10 and 13, and Schedules 2 and 4.

And, as we commented here, the SSExEU has committed to provide, by 5 December, a report, detailing how the individual rights protected by the Charter will be preserved elsewhere in UK law post-Brexit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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