The Lords Have Spoken: The EU Withdrawal Bill Is Not Yet Fit For Purpose



The EU (Withdrawal) Bill continues its bumpy road through Parliament and the House of Lords have spent 11 days in Committee - the stage for thorough examination and debate. After over 100 hours of debate, it is becoming increasingly clear that peers have significant concerns about the bill’s inability to provide legal certainty and clarity. Below is a summary of what appears to be some of key concerns that peers have about the bill.

Peers Demand Parliament A ‘Meaningful’ Vote On The Final Deal

Day 7 of Committee Stage saw an intense debate on parliamentary sovereignty, with peers pressing the Government on the importance of giving Parliament a meaningful vote on the final deal negotiated with the EU.

Labour frontbenchers have already indicated that they will bring forward an amendment on a meaningful vote- leaving Parliament to decide what happens next if they/it reject the deal. While the only certainty is uncertainty, an amendment of this kind is likely to receive cross-party support. Indeed, in the Lords, an amendment for a vote on the final deal is already tabled by Conservative peer Viscount Hailsham, with support from crossbenchers, Labour and Liberal Democrats peers.

Expert Lawyers In The Lords Advocate For Keeping The EU Charter Of Fundamental Rights In The Bill   

Many peers also raised questioned the Government’s decision to exclude the EU Charter of Fundamental Rights in the bill. The Government’s reasoning behind the exclusion has always been that the EU Charter was never the source of rights that UK citizens depend on. However, not only has independent legal advice obtained by the Equality and Human Rights Commission proved that to be wrong, peers with extensive legal expertise like Lord Pannick also pointed out that  “the Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable”

More Details On Scrutiny Of Statutory Instruments Is Needed    

Given the breadth of delegated powers in the bill, peers were anxious to know the exact details of how these powers will be scrutinised by Parliament. In the Commons, the Government conceded to set up a new sifting committee that will deal which pieces of retained EU law need further scrutiny.  However, there is a significant lack of parliamentary scrutiny of what these powers may actually be used for. In particular, the new sifting committee only refers to the Commons only advisory- meaning that the Government does not have to follow through on its recommendations.

On behalf of the Government, Baroness Evans did say the Government would incorporate the new Commons sifting committee into the terms of reference of the Secondary Legislation Scrutiny Committee (an existing scrutiny committee in the House of Lords).

Government Withdraws Their Amendments To Devolution Clause And Promises To Reflect On Peers Concerns

The UK government has still not resolved their dispute with devolved administrations which centres around Clause 11 of the bill, a clause that brings back all EU powers to Westminster against the wishes of Scotland and Wales. During Committee Stage, the Government brought forward amendments to Clause 11 which, although welcomed, warranted critique from peers like Lord Griffiths (Labour) who argued that “even if amended as now proposed by the Government, Clause 11 would give Ministers of the Crown very wide, unilateral powers to use regulations to place new constraints on the legislative competence of the devolved legislatures”.

At the end of the debate on clause 11, the Government withdrew their amendments on the basis that they “will reflect seriously on the points made and incorporate them into our discussions”.  We have yet to see the Government tabling new amendments for Report Stage, but it can be suspected that these will be tabled at the very last minute.

Protection Of Rights, Standards & Principles

One of the main concerns for the Alliance and our members is the protection of rights, principles and standards. This issue was also raised repeatedly across the house, with peers keen to see existing rights transferred effectively. The Government’s repeated response to these concerns consisted of political reassurances that powers in the bill will not be used to undermine rights. Unsurprisingly this response failed to satisfy peers concerns and there is already an amendment down for Report Stage with support from across the house to protect certain rights.

Henry VIII Powers Must Be More Limited 

Peers expressed their concerns about the breadth of delegated powers handed to ministers in the bill. After much critique from peers on Clause 7, which gives minister the power to use secondary legislation to amend retained EU law, the Government said that “we would very much like to talk to noble Lords following the debate, with an eye to coming back to this issue on Report”.  

Lord Bourne also said on behalf of the Government that they intend to bring forward amendments to prevent the Scotland Act 1998 and Government of Wales Act 2006 from being amended under clause 7. However, similar amendments to clause 8 and 9 will not be brought forward according to Lord Bourne, which ultimately raises questions about the potential for powers under this part of the bill being used to amend the devolution acts.

The Good Friday Agreement & The Irish Border

Much of the debates in the Lords have centred around the Irish border issue and the protection of the Good Friday Agreement. Many civil society groups from Northern Ireland have pointed here- the Irish border is more than an issue  about goods and service also its fundamentally about the protection and non-regression of rights for citizens in Northern Ireland.

Responding for the Government, Lord Duncan confirmed their commitment to avoiding a hard border, including any physical infrastructure or related checks and controls. He also maintained there will be an appropriate provision in the Withdrawal Agreement and Implementation Bill iterating each element of the agreement we reach, including the protections set out in the joint report.

While some changes were made to the bill in the Commons, everything is still left to play for- We still need to limit the unchecked power the government wants to hand itself, make sure rights and regulations are ‘copied and pasted’ as promised not changed behind closed doors, and the devolution settlements are protected.

By Malene Bratlie, Research and Project Assistant for the Repeal Bill Alliance.
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Samuel Ellis