The EU Withdrawal Bill has completed its passage in the House of Commons and has moved to the House of Lords. After 20 hours of debate during second reading, and 115 hours at committee stage, the bill now moves on to report stage in the House of Lords.
Six days have been scheduled between 18 April and 8 May. Although the Lords avoided pressing any amendments to a vote during committee, the Government is likely to suffer some defeats if it does not address some of the key concerns by bringing amendments at report.
Third reading in the Upper House is likely to take place in mid-May. After this, proposed amendments will be sent to the Commons. The Government will hope that the bill receives Royal Assent by the summer recess. However, this depends on both Houses reaching agreement on amendments, therefore it could still prove optimistic.
What were the key areas in which the Government was under pressure during the Lords committee stage?
- The status of retained EU law and what priority it will have over domestic law after exit day.
- How the general principles of EU law can be used to challenge the validity of retained EU law after exit day.
- How UK judges should interpret European Court of Justice (ECJ) judgements after Brexit.
- The scope of the delegated powers given to ministers which allow them to amend primary legislation using secondary legislation.
- Scrutiny of the use of delegated powers.
- How to improve the current ‘meaningful vote’ provisions in the bill, added during committee stage in the House of Commons.
- How to address the concern of the devolved administrations that the EU Withdrawal Bill represents a ‘power grab’ over devolved policy areas.
- The inclusion of the date and time of the UK’s withdrawal from the EU in the bill.
In January, the House of Lords Constitution Committee published a report on the EU Withdrawal Bill, setting out its concerns over the way the bill is currently drafted and recommendations to improve it. On 11 April, the Government responded, promising amendments to the bill, in particular to limit some of the scope of delegated powers.
So far, a number of amendments have been tabled by peers in the House, and a few have been tabled by the Government. The amendments outlined below have cross-party support, and the majority of them have been highlighted in the Labour Party’s report stage briefing for the Lords. If the Lords remain unsatisfied with the Government’s amendments, they are likely to press their own amendments to a vote. There is therefore a possibility for a number of divisions in the House over the six-day report stage.
Lord Kerr, a crossbench peer, has tabled an amendment which would prevent the European Communities Act 1972 from being repealed until the Government has laid before Parliament a statement outlining the steps it has taken to negotiate the UK’s participation in a customs union with the EU. The amendment says this would need to happen by 31 October 2018. The Labour Party has now adopted remaining in a customs union as one of its Brexit policies, and given the lack of a Conservative majority in the Upper House, this amendment could be passed.
Status of retained EU law
The Government has tabled a new clause to the bill clarifying what status retained EU law will have after exit day. Rather than adopt the Lords’ Constitution Committee’s recommendation that all retained EU law should be treated as primary legislation in domestic law, the Government has set out two different kinds of retained EU law and how each kind can be amended after exit day. The Government has tabled amendments to other sections of the bill to reflect this addition.
Enhanced protection for certain areas of retained EU law
Baroness Hayter, Shadow Deputy Leader of the House of Lords, has tabled a new clause which would mean that secondary legislation used to amend certain retained EU law would be subject to an enhanced scrutiny procedure. This includes retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards.
The Charter of Fundamental Rights
Lord Pannick, a crossbench peer, has tabled an amendment to transfer the Charter of Fundamental Rights into domestic law. His amendment excludes the preamble and Chapter V of the Charter which sets out the rights of citizens living in the EU (such as the right to stand as a candidate in European Parliament elections and freedom of movement) and would not make sense if contained in domestic law.
Interpretation of ECJ judgements after exit
The Government has tabled amendments to the bill to give greater guidance as to when UK courts should refer to ECJ judgements made after exit day. The amendment says it should do so when it is “relevant”. This is very similar to an amendment tabled by crossbench peer Lord Pannick and is therefore likely to sufficiently address the Lords’ concerns.
The scope of delegated powers
Clauses 7, 8 and 17 all give extensive delegated powers to ministers. Clause 7 is intended to be used to amend retained EU law so it makes sense in UK law after exit; clause 8 to amend UK law so the UK continues to comply with international obligations; and clause 17 for anything else that may need to be amended as a consequence of the bill.
Lord Lisvane, crossbench peer and member of the Delegated Powers and Regulatory Reform Committee, has tabled an amendment to replace the current provision that ministers should use these powers where they consider “appropriate” to where it “is necessary”. Another amendment removes the ability to use delegated powers under clause 9 (given to implement the withdrawal agreement) but being used to modify the act itself.
Lord O’Donnell, a crossbench peer, has tabled an amendment which removes the ability to establish a public authority using these powers.
Another crossbench peer, Lord Hannay, has tabled an amendment to ensure that powers used under clause 8 cannot impose or increase taxation. He tabled a similar amendment to schedule 4.
The Government’s response to the Constitution Committee’s report promises its own amendments to address each of these concerns. Therefore, when the time comes to debate these sections of the bill, it is likely the Lords will accept government proposals.
Scrutiny of delegated powers
During the Commons debate, the Government conceded that there would need to be a new parliamentary committee to sift statutory instruments introduced to amend retained EU law. Lord Lisvane has brought an amendment he tabled at committee stage to make the sifting committee more robust, applying to all statutory instruments in the bill. This would have the power to insist that more robust scrutiny was necessary for statutory instruments, rather than just recommend as is currently drafted.
Baroness Neville-Rolfe has tabled an amendment which says that no statutory instruments under provisions given in the bill can be laid before Parliament until an identical draft has been published for 10 days.
A ‘meaningful vote’ for Parliament
During the Commons committee stage, the bill was amended to ensure that the withdrawal agreement could not be implemented until Parliament has approved – in law – the final terms of withdrawal. Viscount Hailsham, a Conservative peer, has tabled a new clause to the bill which sets out more clearly the role for Parliament in approving the withdrawal agreement. It says that Parliament must approve the withdrawal agreement and transitional measures in an act of Parliament and – if possible – before the European Parliament has debated and voted on this. It also says that if the House of Commons has not passed the resolution approving the agreement by 30 November 2018, if the act implementing the agreement is not passed by 31 January 2019, or if no withdrawal agreement has been reached by 28 February 2019, then the Government must approach negotiations following approval of a resolution by the Commons.
Lord Newby, Leader of the House of Lords, has tabled a clause which would make both Houses have to vote on a motion to hold a referendum on whether to accept the withdrawal agreement before implementing it.
Lord Patten, Conservative peer and Chair of the 1998–99 Independent Commission on Policing in Northern Ireland, has tabled a clause which explicitly preserves North-South co-operation after Brexit and prevents the establishment of new border arrangements which did not exist before exit day, unless agreed between the UK Government and the Government of Ireland.
Time and date of exit day
The Duke of Wellington has tabled an amendment which removes the time and date of exit day from the bill, undoing the amendments the Government brought during committee stage in the Commons.
The Government only lost one vote on the EU Withdrawal Bill in the Commons, when 12 Conservative backbenchers voted in favour of an amendment to Clause 9 tabled by Dominic Grieve, a former Conservative attorney general.
Clause 9 allows the Government to use statutory instruments in anticipation of the contents of the withdrawal agreement. 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.
Despite its other successes, the Government was forced to make a number of concessions:
- The Government adopted amendments tabled by Charles Walker, Chair of the Procedure Committee, establishing 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 by both Houses of Parliament).
- The Government introduced an amendment which would require ministers, before introducing a statutory instrument under the bill, to make a statement to the House of Commons explaining why the instrument is appropriate and how it may affect “any provision of equalities legislation”.
- At the report stage the Government amended Clause 7 of the EU Withdrawal Bill. This 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. The amendment now sets out the complete list of the kinds of deficiencies that UK ministers would be able to correct in retained EU law.
- The Government amended the bill 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. Schedule 8 now allows legal challenges on this basis if they relate to anything that happened before exit day and begin within three months of exit day for primary legislation.