On the 16 and 17 January the EU Withdrawal Bill will go through report stage and third reading in the House of Commons. Report stage is another opportunity for the Commons to discuss the bill and consider further amendments.
The Government gave a number of assurances during committee stage that it would address some of the concerns raised. It has tabled 25 amendments to the bill.
Classification of retained EU law
Primary and secondary legislation are treated differently under UK law. Retained EU law, the new category of law created by the EU Withdrawal Bill, needs to be classified to provide greater legal certainty. Dominic Grieve tabled a clause (New Clause 13) to clarify how this will happen.
Powers to address the deficiencies in UK law
Clause 7 of the EU Withdrawal Bill gives ministers the power to use statutory instruments to amend primary and secondary legislation to ensure that UK law continues to operate effectively after exit day.
MPs have been concerned about the extent of those powers. In response to these concerns, the Government has tabled an amendment to Clause 7 which limits the scope of the delegated powers it’s seeking. The amendment sets out the complete list of the kinds of deficiencies that UK ministers would be able to correct in retained EU law (Amendment 14).
The Government hopes that this will sufficiently address its backbenchers’ concerns.
Restrictions around EU retained law in devolution legislation (Clause 11)
Clause 11 has proved contentious for the devolved administrations in Scotland and Wales because it prevents the devolved legislatures from amending retained EU law in areas which it technically has competence.
The Government committed to bringing forward amendments to Clause 11 at report stage; however, David Mundell, Secretary of State for Scotland, has now said that it will bring forward amendments when the bill reaches the House of Lords.
The Labour frontbench tabled an amendment which would remove this restriction on the devolved legislatures and establish a procedure for agreeing UK-wide frameworks on policy areas currently legislated for at the EU but are devolved within the UK.
Delegated powers for devolved authorities (Schedule 2)
The Government has tried to address some of the devolved administrations’ concerns over their own ability to use delegated powers.
Initially, the bill required devolved authorities to seek the consent of a UK minister when using these powers. But the Government’s amendments now only require them to consult with the UK minister (amendment 26 and 27).
Exceptions to the savings of rights under retained EU law (Schedule 1)
The Government tabled amendments to introduce an exception to Schedule 1. Schedule 1 states that no legal challenges can be brought to domestic legislation on the basis of failure to comply with the general principles of EU law (amendments 37 and 38).
These amendments would change Schedule 8 to allow legal challenges on this basis if they relate to anything that happened before exit day and begin within three months of exit day.
During committee stage, the Government only lost one vote when 12 Conservative backbenchers voted in favour of an amendment to Clause 9, tabled by Dominic Grieve.
Clause 9 allows the Government to use statutory instruments, a form of legislation which allows Acts of Parliament to be brought into force or altered without Parliament having to pass a new Act.
This clause was there to implement the withdrawal agreement, and the amendment tabled by Dominic Grieve would only allow ministers to use these statutory instruments if Parliament has voted to approve the final terms of the withdrawal agreement.
However, the Government was forced to make a number of concessions to prevent further defeats:
- On 5 December, the Government published an analysis setting out how each article of the Charter of Fundamental Rights will be reflected in UK law after Brexit.
- The Government adopted amendments tabled by Charles Walker, Chair of the Procedure Committee, which established a new committee of the House of Commons to sift through statutory instruments, to see if they will be subject to the negative or affirmative procedure (the latter requires approval of both Houses of Parliament).
- The Government introduced an amendment which would require ministers to make a statement to the House of Commons before introducing a statutory instrument under the bill on how the instrument is appropriate and how it may have an impact on legislation for equalities.
- Steve Baker, Minister at the Department for Exiting the EU, acknowledged MP’s concerns over the wide-ranging delegated powers given to ministers by the bill. He said he would be “perfectly willing to work with [Grieve] and others to reflect on this point”.
- David Mundell made a committment to amending Clause 11 of the bill, which restricts the ability of devolved legislatures to amend retained EU law.