The EU Withdrawal Bill and a submissive Commons

MPs should protect democracy. This week they chose not to do so

June 14, 2018
Photo: NurPhoto/SIPA USA/PA Images
Photo: NurPhoto/SIPA USA/PA Images

Brexit was supposed to be about taking back control, empowering the Westminster parliament. So how then should we judge our elected representatives’ performance in scrutinising the domestic legislation that prepares the UK for Brexit, and most particularly MPs’ recent rejection of the House of Lords’ amendments to that legislation?

The European Union (Withdrawal) Bill (EUWB), to give it its full name, is the flagship Brexit legislation introduced to parliament on 13th July 2017. The Bill will repeal the European Communities Act 1972 and thus European Union institutions will no longer be able to make laws directly affecting the UK. The majority of existing EU law will be converted into domestic UK law post-Brexit. Notably, the Bill also provides government ministers with considerable delegated powers to make secondary legislation considered appropriate for leaving the EU.

The Bill passed through the House of Commons last year relatively unscathed, with only one amendment carried against the government. Not so in the Lords, where, altogether, the government was defeated on 15 substantial amendments. This week, on 12th and 13th June, the Bill returned to the Commons, where in two six-hour sessions, MPs considered these Lords amendments.

Given the emotive atmosphere surrounding both Brexit and the EUWB (Anna Soubry MP revealed in debate that a Remainer colleague had received such serious death threats that they needed six armed undercover police to attend a public meeting) it is worth stressing that the purpose of the EUWB is not (in contrast to negotiations currently ongoing in Brussels) to decide the terms of Brexit, but to ensure it can be carried out smoothly and that legal continuity and certainty, essential for all, is maintained. The EUWB is one of the most important pieces of legislation for over 100 years, and should be taken seriously by all, including MPs, who have a duty to scrutinise its provisions carefully. Taking time to examine this legislation properly is not blocking or hampering Brexit. Leaving the EU is an immense undertaking—without special provision there will be huge gaps in UK law. If it is not thought through carefully, there will be also be damage to the economy, society and security, not to mention freedom and democracy.

Reprehensible then, that consideration of the Lords’ amendments by the Commons should have been compressed into only 12 hours, over two days (originally to have been only one). This left almost no time for debate on the substance of most of these amendments. And these were not insignificant amendments, but crucial matters that will affect the UK for years to come. Indeed, so incensed were the SNP MPs in Westminster about the lack of any time given for debate on the Bill’s new devolution provisions (termed a “power grab” by the Scottish government) that they walked out of the Commons Chamber on Wednesday in protest.

In general, this lack of time for parliamentary debate is particularly ironic, given many of the Lords’ amendments concerned both the very issue of future parliamentary scrutiny of the Bill’s operative provisions, and also aimed to address the Bill’s provision for greater government powers at the expense of parliament.

So, what was at issue then, in these two days of Commons votes and debates? The EUWB is very complicated, and has become even more so after passage through both Houses, with a concomitant accretion of amendments, reorderings and changes in the numbering of clauses. Arcane and convoluted scarcely captures the nature of this piece of legislation. There has already been much coverage of the “meaningful vote” for parliament controversy, but this was only one of the 15 amendments inflicted as defeats on the government in the Lords, and all concerned important issues.

It is perhaps simplest to group the Lords’ amendments under six (loosely defined) headings: the meaningful vote for parliament; those concerning rights (especially the EU Charter); the issue of amending/repealing retained EU Law and further parliamentary scrutiny; amendments which concerned the UK’s relationship with the EU (eg whether the possibility of a customs union should be left open); those concerning Northern Ireland; and finally, whether the UK’s exit date should be fixed in legislation. Space precludes equally comprehensive treatment of all amendments here, so this piece focusses on a subjective assessment of the most crucial points.

The “meaningful vote” for parliament

This was considered by many to be the most consequential of the amendments, as it was designed to strengthen the role parliament plays in the Brexit negotiations. However, the “meaningful vote” scenario also captures many characteristic features of the Brexit process. On the one hand, if Brexit is about greater control for parliament over UK affairs, surely parliament should have a say in what form Brexit takes, by means of a vote on the final deal concluded by the government with the EU? On the other hand, the issue also captures the arcane, confusing nature of the process and the Brexit legislation, because there are at least five versions of what form a meaningful vote might take.

These are the following (and bear with me, for what follows is not least an illustration of the opaque, recondite nature of the whole process): first, the government’s original “take it or leave it” offer, whereby if MPs say no, the UK leaves without a deal; secondly, the December Commons amendment, defeating the government, which prevented ministers using powers in the EUWB to implement any withdrawal treaty until an EU withdrawal agreement bill (not to be confused with the EUWB itself!) had been passed; third, the actual Lords amendment, superseding the Commons one, that set out specific deadlines for the government to agree a withdrawal agreement with the EU, failing which parliament could dictate the direction of any future negotiations. Predictably enough, the government did not like this amendment, and tabled its own compromise, stating that if parliament did not approve the deal, a minister would make a statement setting out how the government “proposes to proceed” within 28 days. Fifthly and finally, there was the amendment tabled by Dominic Grieve QC in the Commons on Monday, which (very roughly summarised) stipulated that if there were no agreement by 15th February 2019, the government would be bound to follow any “direction” given by MPs in a resolution passed by the Commons.

In the event, despite much hyping of a meaningful vote, none of these forms was followed, because Tory rebels accepted last minute personal assurances from the prime minister that she would agree the broad thrust of their proposals. Yet, by Wednesday, Downing Street appeared to be backtracking and the Brexit Department stated, “We have not, and will not, agree to the House of Commons binding the government’s hands in the negotiations.” What then, was the point of all of that energy, all the time spent drafting and arguing for five different types of amendments, if all that was to be received by MPs was a personal assurance whose efficacy barely lasted one day?

Maybe all is not lost however, as, if the government does not put in writing, in the Bill’s text, its commitment to a meaningful vote, then the issue will be raised all over again when the Bill returns to the House of Lords next week. And that prospect raises another irony—that of the unelected House of Lords arguing for the greater autonomy and sovereignty of the elected House of Commons.

What of the other Lords’ amendments, all rejected by the House of Commons? A cluster of these related to maintaining important fundamental rights endowed on the UK by EU law, and votes on them took place on Wednesday. As Vernon Bogdanor has argued, perhaps the most notable feature of Brexit is that it transforms the UK from a protected (because it entrenches EU rights) Constitution to an unprotected one (because the special protections of EU law will be abolished and the EU Charter of Fundamental Rights not retained in the UK). There will be no special constitutional protection in the UK for rights such as equality rights. The House of Lords had attempted to remedy this, most notably through crossbencher David Pannick’s amendment to transfer the Charter of Fundamental Rights into domestic law. However, the government will not retain the Charter, arguing it merely repeats much UK law. This is highly debatable, as many of the Charter rights are not protected by the Common law or the UK’s Human Rights Act so become especially vulnerable to repeal after Brexit. A further amendment, to provide enhanced scrutiny for secondary legislation that would amend or repeal retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards, also failed to be sustained in the Commons. So much for protecting workers’ rights and a “jobs first Brexit.”
“Time vs need for scrutiny presents an irresolvable conflict”
Another group of amendments also merits consideration. One was aimed at constraining ministerial power to change all sorts of retained EU law and placed a greater limit on so-called “Henry VIII powers” (which allow ministers to change primary legislation with very little parliamentary involvement, surely a most undemocratic process). A further amendment, introduced by crossbencher Robert Rogers, former clerk of the House of Commons, would have introduced a special committee to scrutinise all ministerial changes to retained EU law, with its recommendations binding on ministers. This was also rejected in the Commons. A pattern emerges—if anybody is to gain greater control on account of Brexit, it is the government, whose powers will be increased by the EUWB, rather than parliament.

A further group of amendments concerned the UK’s relationship with the EU. The two key ones were on continued membership of the Customs Union, and European Economic Area (EEA). The House of Lords had adopted an amendment that would prevent the European Communities Act 1972 being repealed until the government had laid before parliament a statement outlining steps taken to negotiate the UK’s participation in a customs union. The government replaced this with its own amendment, significantly different because it refers to participation in “a customs arrangement” with the EU—whatever that might mean. The House of Lords had also adopted an amendment requiring the government to make remaining in the EEA a negotiating objective. This amendment was rejected—but here, any drama enveloped the Labour Party as much as the government, as Labour’s decision to abstain on the EEA amendment was rejected by nearly 90 Labour MPs, including six frontbenchers who resigned. Brexit is divisive of party unity.

And spare a thought for the devolution aspects of Brexit. The Irish border issue has proved to be one of the most intractable aspects of Brexit, generating a great deal of heat and little light. Yet on Tuesday night, in a surprisingly underreported move, MPs agreed a government amendment (altering the Lords amendment, which had required no changes to Irish border arrangements without the agreement of both the UK and Irish governments). The government amendment proposes that the bar on border changes refers only to physical infrastructure. It is difficult to foretell how these changes might work out. Yet, Interestingly, Kenneth Clarke argues this will create a legal obligation that will effectively keep the UK in the single market: “The legally binding commitment yesterday extends the needs of the Irish border to the whole of the United Kingdom.” Not surprisingly, the government denies this.

Nor should we ignore the great dissatisfaction with the EUWB in Scotland. There was no Lords amendment on devolution debated this week, because the government had already amended the Bill’s devolution provisions in the Lords. This, however, failed to satisfy the Scots, who still saw the arrangement as a power grab and an interference with the devolution settlement. What the Scottish government and SNP MPs desired was some debate of this matter during these two days, which was not provided. Indeed, not a single Scottish MP was given time to speak on this topic, hence the SNP walk out during Prime Minister’s Questions on Wednesday. This is a serious matter, which should not be dismissed as a “stunt” or “farce,” as some have done, given that the Scottish parliament has already refused to give its legislative consent to the EUWB and adopted its own “Continuity Bill” as a rival to the EUWB. This Continuity Bill is being challenged by the UK government in the Supreme Court in July. If the UK government is suing the Scottish government in the UK’s Supreme Court over which parliament’s Brexit legislation shall prevail, all is clearly not well in the UK Union. Nor is it satisfactory that the UK government continues with the EUWB, in the absence of consent from the Scottish parliament, in breach of the Sewel constitutional convention. This is a disunited Kingdom.

What happens next?

Both Houses must agree on a final text for the Withdrawal Bill to pass. The Bill is currently in the stage known as “ping pong” and this process can continue until either all amendments have been agreed, or deadlock (or “double insistence” as it is called) is reached, in which case the Bill is normally considered to have been lost.

So, if the House of Lords were to insist on reinstating and maintaining its amendments, could it actually kill off the Withdrawal Bill or block Brexit? Notably, one means of resolving disagreement under the Parliament Acts 1911 and 1949 appears unavailable. Under these Acts, the House of Lords can only prevent a Bill becoming law for one session of parliament, which usually lasts one year. However, the prime minister has stipulated that the current session lasts two years and will only end after 29th March 2019 when the UK should have left the EU, and so legislation providing for it must be in place.

And this is even without mention of all the other Brexit legislation which the government must get through parliament (eg customs, trade and agriculture bills) where the House of Lords will similarly be able to impose its own amendments. Given all this, how will the UK’s legal system be ready for Brexit? So, time is of the essence, and yet there is also a democratic imperative in adequate parliamentary scrutiny of all of this paradigm changing legislation. Time vs need for scrutiny presents an irresolvable conflict, almost as intractable as the Irish border issue.

In contrast to the House of Lords, it is notable that MPs are behaving in a passive and docile fashion with regard to the EUWB—with some exceptions (such as the former justice minister Philip Lee, who resigned on Tuesday morning). In this way, the elected House is failing to resist provisions in a Bill that will transfer a huge amount of power into the hands of government to amend or repeal legislation, with very little or no room for parliamentary scrutiny. MPs also permit the weakening of rights protection and enforcement. They allow the closing down of discussions on future arrangements in customs and trade. They are risking the devolution settlement. Worst of all, parliament may have denied itself the chance to insist on a meaningful vote in the Brexit negotiations. Whatever it may mean, Brexit must not entail emasculating fundamental rights, transferring power from parliament to government, risking devolution, nor some sort of self-denying ordinance against a meaningful parliamentary vote. It should not be left to the House of Lords to insist on these matters. MPs should protect democracy and their prerogatives. But it seems too many of them are too submissive to do so.