Don’t Shoot the Messenger

Like many people, I have been reading the European Union (Withdrawal) Bill since it was published this week. It is a Bill that faces a formidable task: how to create a body of EU-derived law within domestic law when the UK leaves the European Union and how to create mechanisms to allow that law to be interpreted, implemented and amended in the period following the UK’s departure from the EU. Not surprisingly, the complexity of the task is mirrored in the construction of the Bill itself.

When thinking about how to blog about the Bill, I fully anticipated that I would be approaching the task like a badly-denimed Top Gear presenter. Circling the Bill, peering under its hood and smugly opinioning to the audience, I expected to be dispensing pithy commentary about whether the Bill was a Fiat or a Ferrari.

Instead what I discovered is how out of practice I have become at reading domestic UK legislation. I am much more familiar with the style and syntax of EU legislation than I am the draftsmanship of UK legislation.  And that’s on top of getting to grips with what the Bill is actually trying to do. To signify my own bemusement, I tweeted something:

The tweet incited responses. Many people saw in this the complexity of the legislative task. Others considered it to be a complaint about bad drafting. Still others linked it to the shambles of the politics of Brexit and the policy choices which are being made not just about Brexit but also within the Bill itself.

The responses have made me reflect on the types of comments and commentary that people like me make.

The first thing to make clear is that the tweet was an honest statement of my own inadequacies. While I understood fully the aim of clause 2, I was perplexed by this particular bit in it. I was rather hoping someone might help. It is one of the upsides of the social media of Brexit that it is possible to tap into a wide range of expertise. And I think that is especially important in the context of the real complexity of Brexit where none of us can lay claim to comprehensive knowledge or expertise. I have no shame in holding my hand up when I don’t understand something and I think it might actually help us all manage Brexit a little better if we could muster some humility.

The second point to make is that we need better to distinguish between the policy choices that ministers make and the technical craft of giving effect to those choices in law and in legislation. Rightly, lawyers, academics and others have things to say about those policy choices: from the decision not to include the EU Charter of Fundamental Rights within the corpus of EU-derived law to the discretion which UK government ministers will be able to exercise to make significant changes to these EU-derived rights and obligations. These are the very legitimate objects of commentary and criticism and the language we use in these contexts is part of the wider contestation of Brexit and its implications. But in the process, let’s not shoot the messenger. Public servants – government lawyers, civil servants and parliamentary counsel – face the difficult task of translating those choices into legal language. But they are not the author of those choices and its unfair to conflate the difficulties of decoding legislative drafting with the conduct of government at the level of ministers and their advisors.

Which leads me back to the tweet itself. It is also right that now that we have the draft of the Bill that it is properly road-tested. Part of that will be to try and respond to legitimate requests – like my own – for clarification. And part of it will be to see whether the Bill as drafted will function in the way it is intended and without creating anomalies or discrepancies. There is even room to ask whether the same outcome might be achieved in a different way. The legislative process and the scrutiny which attends the Bill is certainly a key way to put this Bill through its paces. But there is also space for wider commentary from academics and lawyers about how they see the Bill working in practice. As a simple example, the Bill uses the term “EU tertiary legislation”. It’s not a term I like. If it refers to what I think it refers to – a world of EU delegated and implemented acts – these are not examples of “legislation’ within EU law but are instead non-legislative acts. These are areas where I think there can be reasonable disagreement about the terms used in the Act. And it is right that I and colleagues offer commentary on the design, structure and content of the Bill.

As it happens, I have been offered an explanation of what the previously mysterious Clause 2(2)(c)(ii) means and I now think I understand what it seeks to do (there is, of course, an explanatory memorandum accompanying the Bill but I didn’t find the necessary detailed explanation I was looking for). So I think it’s possible to have a constructive dialogue about the Bill from a technical point of view. But I don’t think we should use that discussion as a proxy or metaphor about the conduct of the government in its handling of Brexit.

As a matter of record I want to say that if my tweet was interpreted as a side-swipe against hard-working government lawyers, counsel and civil servants tasked with the unenviable task of embedding EU law in UK law after Brexit, then I offer an apology. The intention was entirely the opposite: a candid admission that after more than twenty-five years of doing EU law I have probably become de-skilled in the ways of UK legislation. That does not bode well for my post-Brexit professional career.