On Wednesday, the government suffered a major defeat on its Brexit legislation, when amendment seven to the EU Withdrawal Bill was successful. There have been around 400 amendments tabled to this Bill, and to date, this is the only one to have succeeded.
The EU Withdrawal Bill aspires to convert over 40 years of EU legislation into UK law in time for Brexit in March 2019, giving the government the power to decide which parts of that legislation should be retained or repealed. To be sure, the Withdrawal Bill is a vital piece of legislation, necessary to prepare UK law for Brexit day. Without it, there would be uncertainty, huge gaps in UK law, chaos even. However, the Bill as currently drafted is truly problematic, not least in providing a huge increase in ministerial powers at the expense of parliament, often conferring on Ministers highly controversial “Henry VIII” powers (namely powers for ministers to amend or repeal Acts of Parliament with next to no parliamentary involvement). So much for parliamentary sovereignty. Hence the many amendments tabled to this Bill.
So, what was amendment seven about? This amendment was tabled by Dominic Grieve, Conservative MP and former Attorney General, and it requires any Brexit agreement to be approved by a separate Act of Parliament before it can be implemented. Now the government had already conceded that MPs would have a vote on the final Brexit deal—but had insisted this would be on a “take it or leave it” basis, leaving parliament no real say in the matter. Amendment seven seems to envisage the possibility that the government could be sent back to renegotiate with the EU rather than simply giving parliament a deal to rubber stamp. It is, therefore, designed to ensure parliament has a “meaningful vote.” (Although given the time strictures of the Article 50 process, as discussed below, this simply may not be possible.)
More specifically, the amendment seeks to change Clause 9 of the Withdrawal Bill, which gives ministers hugely sweeping “Henry VIII” powers to implement the Withdrawal Agreement in any way they see fit, with virtually no parliamentary control. Dominic Grieve’s amendment added the clause that use of such ministerial power should be “subject to the prior enactment of a statute by parliament approving…