After 12 days of scrutiny in the Commons, which saw the Government fend off amendments on a range of issues but make a number of concessions and suffer one defeat, the EU (Withdrawal) Bill begins its passage through the Lords this week.

The Government faces an even greater challenge in the Lords. While it is unlikely Peers will attempt to ‘block’ the Bill to prevent Brexit, they will look to significantly amend it. Peers typically undertake closer scrutiny on the technical aspects of Bills, and the nature of this Bill gives them plenty to consider. While the Bill does not spell out the future relationship the UK will have with the EU, it provides the legal mechanism to repeal the European Communities Act 1972 – the Act that took us into what became the EU – and creates a framework for legal certainty by creating a new body of ‘retained EU law’. This process and the provisions included in the Bill therefore raise many difficult constitutional and procedural points: just the type of Bill Peers like to get stuck into – without even considering the pro-European nature of the House.

With 185 Peers scheduled to speak during second reading at the time of writing, and Peers limited to 6 minute contributions, a lot of the forensic scrutiny will take place at committee stage. Lords have been given 10 days to work their way through the clauses in the Bill in committee – that’s two days longer than the Commons had, indicating the Government anticipate that Peers will ‘indulge’ themselves.

So where are the Lords likely to focus?

Henry VIII powers

The most controversial aspect of the Bill in the Commons – the clauses affording Ministers delegated powers, including the power to amend primary legislation through secondary legislation (so-called Henry VIII powers) – will be a key area of focus for the Lords. The Lords Constitution Committee has made a number of recommendations in relation to these clauses, including amending clauses 7 and 8 so that Ministers that consider it “appropriate” to use the correcting powers afforded must demonstrate that there are “good reasons” for its use and can show that the power is a “reasonable course of action”. The Committee also recommends that clause 9 be removed from the Bill as there is no justification for the inclusion of the power, and that the power to make “consequential amendments” in clause 17 is removed. The Committee is influential in the Lords and has a number of high-profile members, including former Lord Chief Justice Igor Judge and barrister Lord Pannick, who acted in the Article 50 legal challenge. It is therefore highly likely that these recommendations will be worked up and tabled as amendments to the Bill and that they will garner significant cross-party support.  After resisting to do so in the Commons, the watering down of these provisions in the Lords will be a very tricky moment for the Government, whether they are defeated or are forced to concede to avoid losing a vote.

Status of EU retained law

Another area of focus in the Lords Constitution Committee report on the Bill, the status of EU retained law, was not discussed at length in the Commons. Conservative backbencher Dominic Grieve MP tabled an amendment at report stage that aimed to provide greater legal certainty by classifying retained EU law as either primary or secondary legislation, however while this received some cross-party support, it was not put to a vote. The Lords Constitution Committee returns to the issue, arguing that the current ‘case by case’ approach favoured by the Government in terms of how EU retained law is classified would produce a “highly inconsistent tapestry of EU law”.  The Committee recommends that all retained direct EU law is given a single legal status of domestic primary legislation. The Committee further recommends that the “supremacy principle” – the principle that EU law takes priority over domestic law – be removed. The Committee suggests that the Government’s objective of giving retained direct EU law priority over pre-exit, but not post-exit, domestic law would be met by their suggested focus on the domestic legal status of retained direct EU law. A complicated and technical issue, this will be a focus of the legally minded members of the Lords, of which there are many. Peers working with the ‘Brexit mutineers’ in the Commons, including Dominic Grieve, are also likely to support such amendments.

CJEU jurisdiction and case law

The jurisdiction of the Court of Justice of the European Union (CJEU) after the UK leaves the EU is a contentious political matter and one to be resolved at the negotiating table. While Prime Minister Theresa May made this one of her four Brexit red lines at her initial Lancaster House speech, and stuck to this at her later speech in Florence, if there is a feeling among Peers that the Government is beginning to soften this approach – particularly in relation to the transitional period – we may see amendments tabled to reflect this. Peers will not want to see a contradiction between the Bill and the way that Government policy is currently moving, for fear that the Government will later be hamstrung in its negotiations by a piece of domestic legislation that did not need to contain such provisions. The Lords could conceivably try to remove or amend any clauses that result in a definite end to the jurisdiction to the CJEU immediately upon ‘exit day’, as enshrined in the Bill, to give the Government the option of continued CJEU jurisdiction during the transitional period.

Peers are also likely to seek clarification on when courts should be guided by post-exit CJEU case law and what amount of weight to ascribe to this. Following the branding of the three High Court judges that ruled on the Article 50 case as ‘enemies of the people’, Peers will be highly conscious of the need to prevent judges becoming involved in political controversy. The need for further guidance has been echoed by senior judiciary, including President of the Supreme Court Baroness Hale, who said in her first press conference that she hoped the Bill would give “as much clarity as possible” on how the Supreme Court should be taking into account future CJEU judgment. Expect amendments that seek to insert such increased clarity and guidance onto the face of the Bill.

Devolution

The Bill envisages the transfer of competences from the EU level to Westminster, but devolved administrations have criticised the Government’s failure to provide clarity and certainty as to which powers will then be devolved and on what timescale, particularly because some of these powers fall within areas of existing devolved competence. The Government has already passed a number of amendments related to devolution following concerns raised in committee stage in the Commons and discussions with political leaders in Scotland, Wales and Northern Ireland. These allow devolved administrations to modify directly retained EU legislation in areas where a common framework is not needed; however, the Government is yet to /agree where frameworks will and will not be needed. With Peers all too aware of the constitutional consequences of proceeding with the Bill without legislative consent from the devolved legislatures, they will look to pressure the Government to bring forward its further promised amendments following agreement on these frameworks, and to ensure that the approach to the return of competences is one which the devolved legislatures are content with.

Parliament’s involvement in Brexit process

The Government was defeated in the Commons after 12 Conservative MPs voted on an amendment to Clause 9 tabled by Conservative backbencher Dominic Grieve MP. Clause 9 allows the Government to use statutory instruments to implement the withdrawal agreement, however the amendment only allows Ministers to use these statutory instruments if Parliament has voted to approve the final terms of the withdrawal agreement. It is highly unlikely that this amendment will get reversed in the Lords as Peers are broadly in favour of this, but they may seek to make this more robust.

A new Committee in the House of Commons will be established to sift through statutory instruments to see if they will be subject to the negative or affirmative procedure (or need additional Parliamentary scrutiny), after the Government accepted amendments to schedule 7 tabled by Charles Walker MP, Chair of the Commons Procedure Committee, during Commons committee stage. However, this amendment made no reference to the Lords role in the process. The Lords Delegated Powers and Regulatory Reform Committee have since published their report on the Bill, proposing a new sifting mechanism whereby when a Minister proposes the negative procedure, a Committee of each House or a joint Committee of both Houses, should be given 10 days to overturn the Minister’s proposal and upgrade scrutiny to the affirmative procedure. We therefore expect substantial discussion of how the sifting process should work and the role the Lords should play in this, with consideration likely given to suggestions of Lords formal involvement in the sifting committee(s) and an enhancing sifting process building on the work of the Commons Procedure Committee.

Exit day 

The UK will leave the EU at 11pm on 29 March 2019, after the Government tabled their own amendments to Clause 14 of the Bill in the Commons, defining a specific exit day and time on the face of the Bill. This was controversial, however the Government avoided defeat after accepting Conservative MP Oliver Letwin’s compromise amendments, which give Ministers the power to change exit day if needed. Peers may decide that this compromise is not enough, and seek to remove the specific exit day and reinstate the original provisions in the Bill, which would allow Ministers to appoint different exit days for different purposes and thereby give the Government greater flexibility in negotiating a transitional arrangement.

Charter for Fundamental Rights

Despite numerous attempts by the Opposition in the Commons to force the Government to enshrine the EU’s Charter for Fundamental Rights into UK law after Brexit, the Government saw off a potential rebellion by promising to undertake a “right-by-right analysis” of how the protections afforded under the Charter will be guaranteed after Brexit. Peers reportedly remain unconvinced with the Government’s analysis and can be expected to push the Government further on this point.

The Government therefore has plenty to think about and for its new Brexit Minister in the Lords, Lord Callanan (the third occupant of the role in four months), there are testing times ahead.

Media focus may remain on outspoken critics such as Lord Adonis, but numbers in the Lords as well as their general deference to the elected House of Commons mean that ‘anti-Brexit’ amendments are unlikely to pass. However amendments that aim to improve the legal and procedural ramifications of the Bill will be a plenty, and for a Government fighting a number of Brexit related battles elsewhere, including on its own backbenches, concessions and some defeats are more than likely.

 

Main image by Maurice – https://www.flickr.com/photos/mauricedb/

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