The dead period between Christmas and New Year is normally a time for relaxing, watching rubbish TV and regretting how much food you are still eating.

Sadly for lawyers, legal commentators and anyone with an interest in politics that has not exactly been possible this year. That’s not too surprising because some sort of Brexit deal was being hammered out but we should also not be surprised that 2020 was determined to throw at least a few last minute curveballs.

Anyway now that we have the agreement it is necessary for it to be implemented into UK law before the deadline on the 31st December. The solution is for the European Union (Future Relationship) Bill to be ploughed through Parliament at record speed. The consequences of this are obvious on both sides; while it means that the UK will no longer be stranded in a ‘no deal’ situation come the new year it also means that there are significant legal changes that are going to be enacted with little or no scrutiny.

Despite the Bill being a chunky 85 pages long it is fairly short for how much it is trying to achieve. Instead of getting bogged down in details it mostly tries to make sweeping changes to legislation by default. The key provisions in this endeavour appear to be clauses 29-33:

Clause 29 – States that UK law will have effect as if it complies with the Brexit Trade Agreement. A lot of commentators are comparing this to a ‘Henry VIII clause’ but whereas such a clause would allow for a statutory instrument to be passed that would amend the law, clause 29 seeks to make these changes automatically. This is significant because it appears to place the recent international agreement on a higher pedestal than current UK law and so, in its legal effect, is much closer to section 2(4) of the European Communities Act 1972 that ensured the supremacy of EU law. If the new agreement ensures compliance with EU regulations and this part of the Bill gives that supremacy then really how far away are we from the prior role that EU law played? Is this a Brexit in words only?

While we are on this point, another significant issue is the awkward position that clause 29 will place the courts in. If the law is to be ‘automatically modified’ and it is not the government who will be making the changes then that means it will be up to courts to ‘read in’ substantive amendments to the law. Given that the constitutional role of the judiciary is to interpret the law, it is hard to imagine they will be pleased about having to make it all of a sudden. The absence of any ‘preliminary reference procedure’ will also make this twice as hard and increases the likelihood that an unfavourable interpretation will end up subject to the dispute resolution procedure in the agreement.

Clause 30 – Requires the courts to interpret the agreement in line with international law. This appears fairly innocuous but could get interesting if the government makes subsequent moves to once again undermine the Good Friday Agreement.

Clauses 31-33 – Allows ministers to make regulations in relation to the Trade Agreement. Clauses 31-33 are much closer to a traditional understanding of a Henry VIII clause and have therefore garnered the most uproar and criticism so far. By supporting the Bill it is argued that the Labour Party are essentially writing the government a blank cheque to do what it likes. That is not quite true as there are some limitations and the regulations would be subject to an affirmative procedure in Parliament. Nevertheless there should be no doubt that this is significant and in a year that has already seen the executive make huge power grabs this will have huge, long-term constitutional implications.

A lot of excuses will be provided for the way that this legislation is drafted and the way that it hands powers out: there are time sensitivities as the 31st draws near; it is necessary to ensure businesses can continue to trade with Europe in the new year. The issue is that these problems are all ones of the government’s own making and it is not right that those in power should be rewarded for its failure to get a deal done until the 11th hour. The more cynical might suggest that a last minute deal has actually been a good way for Boris Johnson to avoid scrutiny and accrue more powers to Downing Street. Either way the legal implications are ones that we will be feeling the impact of for years to come.