Committee For Exiting The European Union Hears From A Panel Of Legal And Policy Experts

The Committee for Exiting the European Union heard evidence from a panel of legal and policy experts on Parliament’s role over the next few months, including what legislation Parliament needs to pass ahead of withdrawal to provide for a functioning statute book with or without a deal, including an EU (Withdrawal Agreement) Bill.

Stephen Kinnock: Many thanks for coming today to speak with us. I wanted to ask about the withdrawal agreement Bill, but just before I do that, I just wanted to go back on one point around the constitution of the European Parliament, in the context of the possible extension. We have talked, of course, about the risks of litigation, but there is another very important function that the European Parliament will have over the course of the summer, which is the nomination and confirmation of the President of the European Commission and of his or her team of commissioners, which will be done, first of all, according to the President, on the basis of the Spitzenkandidat system, and then each of the European Parliament committees will have hearings to confirm each of the candidates for each of the commissioner posts. What is your assessment of the integrity of that system if the United Kingdom is still a member state when those hearings are going on but we have not taken part in European parliamentary elections?

Professor Young: You are right that it would question the integrity of that particular process, but you are going to have to think about it, again, in terms of how long the extension is and how that links into a particular process and whether we have been in a situation where we have been able to negotiate a protocol. The shorter the extension, if there was an ability to go away and raise this, and negotiate a protocol for us to have some kind of say that relates into how long we will be continuing membership and what our role would be, then you can shore up the integrity that way. If you are dealing with a longer extension, then obviously in that scenario you would have to move to holding elections, because we would be going beyond 2 July, and then having the integrity of the process that way, because we would have gone through the election process and have members.

Stephen Kinnock: In the context of the proposal for a possible second referendum, the Institute for Government has said it would take a minimum of 25 weeks to organise and hold a referendum. That would actually be in direct parallel with the period in which the European Parliament would be nominating and confirming the new European Commission. If it were specifically for a request for an extension to hold a referendum—we think that is a minimum 25 weeks—that would inevitably therefore be at the same time as the European Parliament is going through this process with the new Commission. In that scenario, your view is that the integrity of that process would be fundamentally undermined if the United Kingdom is still a member state but we have not participated in the European Parliament elections.

Professor Young: It is important to recognise what I mean by “undermining the integrity” there. I am thinking of it in terms of background constitutional principles. It is much more complex in terms of the ins and outs of what the precise legal situation would be, because obviously this is a novel scenario and it would require interpretation. In terms of upholding good constitutional values, you are in a very difficult position if, on the one hand, the member state is still a full member of the European Union pending leaving but, on the other hand, is not in a position where it can take part in those decisions, which is why you would have to have very complex and difficult negotiations to uphold the integrity of that process, yes.

Stephen Kinnock: It is not just about the Parliament as an institution; it is also about the European Commission. That would be a massive issue, of course, for the EU.

Professor Young: Absolutely.

Stephen Kinnock: Moving on to the withdrawal agreement Bill, could you just give us a sense of the constitutional, legal and political significance of the withdrawal agreement Bill? It seems to me that it is of massive and fundamental significance, and yet here we are without even having a draft of it to look at? It would just be good if you could give the Committee a sense of how important that piece of legislation is.

Professor Young: I will try my best. I have already mentioned the requirement under the withdrawal agreement to ensure that European Union law and the provisions of the agreement continue to have the same force, which means they still have to have direct effect and they still have to be able to disapply contradictory legislation during the implementation period. Obviously, that is going to require careful wording to ensure that we do have that particular constitutional effect. The precise wording will then interact with the potential of other provisions that could be potentially entrenched in this particular manner.

It is not just in terms of maintaining the wording. You also have provisions. For example, there is the lifetime commitment to citizenship rights of individuals who have started to commence citizenship rights during the implementation period. We already have a mention, in the White Paper that was produced when it was known as the implementation Bill, that this would require, in some way, shape or form, special procedural requirements in order to be able to protect these particular guarantees. It is not just with regard to the lifetime citizenship rights. You also have non-regression clauses in the withdrawal agreement to maintain various standards—for example, environmental law and labour law rights. All of those are going to be very difficult to ensure you succeed in a way that satisfies the requirements of the withdrawal agreement and that satisfies the European Union that you have effectively implemented the withdrawal agreement in a manner that is carefully negotiated in terms of its impact on parliamentary sovereignty, if we are including special procedures that would need to be used in order to remove these rights.

This is a hugely controversial, contentious issue in constitutional law, which would require very careful wording, not just in terms of how you set out the legislation but also in terms of how the courts would then interpret that legislation, specifically with regard to other areas of the law. It has huge knock-on constitutional ramifications. You also then have to look at aspects, for example, in terms of how far you would want to have parliamentary scrutiny over the joint committee and how far you would perhaps need legislation, or further discussions as to how you would deal with scrutiny over joint committee decisions.

You would also have to think very carefully about the interactions between the European Union withdrawal agreement and the European Union (Withdrawal Agreement) Bill, because there are differences in terms of not just aspects of the law. The European Union (Withdrawal) Act, as it stands, would remove the charter from exit date, which would be incompatible with the withdrawal agreement, which would require the retention of the charter during the implementation period. That is obviously not yet in force, but you would have to make sure that was carefully negotiated, and you would also have to ensure the continuing role for the European Court of Justice within the withdrawal agreement, which is not currently in the European Union (Withdrawal) Act. You have quite large constitutional modifications in order to ensure that we satisfy the requirements of the withdrawal agreement so that we implement it correctly, but also this is going to require us to think very carefully about parliamentary sovereignty.

Stephen Kinnock: Would you say, then, given what you have said there, that the fact that the Government have not yet published a draft of this Bill is a constitutional outrage?

Professor Young: I would go so far as to say that I am very severely constitutionally concerned, as a constitutional lawyer. I am not sure if that is an outrage or not, but I am very concerned.

Stephen Kinnock: I have one final point that is specifically around Article 4. It is the case that Article 4 gives supremacy to EU law during the implementation period. Is that something that you predict would be politically contentious if Parliament was given the chance to debate and vote on that particular issue of the withdrawal agreement Bill?

Professor Young: It obviously will raise political concerns, not just with regard to the continuing role of the European Union withdrawal agreement during the implementation period, but also because, within the withdrawal agreement terms, you are in a situation in which, in terms of the legislation that would be enacted by the European Union during the implementation period, we do not have the political rights and we do not have a say in that law, but at the same time the withdrawal agreement, during the implementation period, would require us to give primacy and direct effect to that law, which is obviously a very different position from current membership of the European Union, where we do have that political say in the enactment of the law that then has direct effect and can override or disapply legislation.