Impact assessment – no, don’t fall asleep yet – is a boring technical discipline. I know: I used to be the impact assessment specialist for HMRC and for all Treasury tax measures. The point is to regulate how governments regulate – the IA process is actually designed to be a brake or anchor on introducing new legislation. Supposedly you think through the impacts as you design the policy, so that by the time you get to the stage of introducing legislation you’ve already worked out the costs and benefits, got your stakeholders on side, and checked that you aren’t proposing anything that damages small businesses or has equality implications or offends against any other government priority. Actually in civil service terms it’s a fun job if you don’t mind a bit of unpopularity – you get to tell MUCH more senior people that they can’t ride their hobby horse till they fill in this form, and you get to play “my boss is senior to your boss” sometimes all the way up to the Minister’s private office, at which point they tell you to go away and come back when you’ve worked it all out.
So does the Brexit agreement need an impact assessment? Well, does it have an impact on businesses? Yes it does. Is that impact more than £5 million a year? The last draft showed an impact in the billions, so, yes. Can you get out of it by saying Brexit is self-evidently a good thing so a further impact assessment isn’t required? Er, no, that’s not how it works.
(Side note: just a thought, but did they actually negotiate this new agreement without knowing what the costs and benefits of each change might be?)
What can anyone do about it? Judicial review – governments have said publicly (for example this government,
here in this document) that they’ll do impact assessments and under what circumstances.
…and here’s the catch. You can bring a judicial review on the grounds of “legitimate expectation” – citizens can expect governments to follow their own rules, and the courts can force them to go back and do their homework properly under those circumstances. But parliament trumps courts: if a change is legislated, you have to assume that parliament understood they hadn’t got the impact assessment they were entitled to expect but decided to do it anyway.
In other words, my reading of the situation is that if someone wanted to bring a judicial review this afternoon they might plausibly argue that parliament couldn’t reasonably vote on the Brexit deal without an updated impact assessment showing the projected costs and benefits. But when the courts close today it’s too late – if the agreement passes on Saturday, then the presumption is that the parliament that passed it knew what they were doing…
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