All roads lead to nowhere?



Another week in Brexitland - how much progress have we made this week towards an orderly and smooth exit? In actual terms, not much. The Commons have had yet another week of voting on a number of amendments to Theresa May’s deal. Out of the amendments that were put to a vote, 2 got passed.

The first, tabled by Conservative MP Dame Caroline Spelman and Labour MP Jack Dromey set out to reject a No Deal Brexit. It was passed by 8 votes. But the amendment has no clear path for how exactly the Commons should stop a No Deal. It has the effect of, in principle, stating that MPs are against a No Deal, but doesn’t lay out what exact steps they should take to avoid that outcome. So, instead of voting in favour of Yvette Cooper’s amendment which would have extended Article 50 (if the threat of No Deal were still looming at the end of February), MPs chose to vote in favour of an amendment that actually does little to stop a No Deal in procedural terms. 

The second amendment to pass by 16 votes was tabled by the chairman of the 1922 Committee, Conservative MP Graham Brady. It set out to replace the Irish backstop with ‘alternative arrangements’. So far, however, no one appears to know exactly what these are. Not Brady himselfnot Theresa May and not the Brexit secretary, Stephen Barclay. We know that the DUP and ERG group want to see a time-limit to the backstop or an opportunity for the UK to unilaterally pull out. But the EU has said on numerous occasions that this is not an option. Chairman of the ERG, Jacob Rees Mogg also tabled an amendment together with pro-remain Conservative MP Nicky Morgan and others on Tuesday known as ‘the Malthouse compromise’. In simple terms, the amendment sets out that the prime minister would renegotiate the backstop element of her Brexit deal to replace it with a free trade agreement with as-yet-unknown technology to avoid customs checks on the Irish border. It would also involve extending the transition period for an extra year until December 2021 to allow more time to agree on a new trading relationship. The amendment was rejected in Parliament Tuesday and has already been met with a lukewarm response from the EU. Recommend reading Dr Katy Hayward blog on the amendment, where she says it "is by no means a serious legal text and it is bewildering that any parliamentarian would consider it to constitute a viable alternative to the Withdrawal Agreement’s protocol”.

Donald Tusk, president of the European Council, said just minutes after the vote on Tuesday that: “the withdrawal agreement remains the best and only way to ensure the orderly withdrawal of the UK from the European Union. The backstop is part of the withdrawal agreement, and the withdrawal agreement is not open for negotiations”. 

All roads seem to be blocked. MPs won’t back an extension of Article 50, they won’t back May’s deal and they will not put proper mechanisms in place to avoid a No Deal. The Government also tried to reach out to Labour MPs this week, with the suggestion that, if they vote for Theresa May’s deal, the government will increase spending in their communities. It has run into some resistance, with TUC and Labour MPs pushing back at No 10’s bid. The attempt from the government to offer assurances on workers’ rights has also been described by the TUC as not going far enough. But, as Bloomberg reports, Corbyn could be relaxed if Brexit was delivered by Labour votes, but without Corbyn having to come out to publicly support it.

Meanwhile, the clock is ticking, with just 56 days left until 29 March, a No Deal remains the legal default. Parliament has to take active steps for something else to happen. We may just may, get a clearer idea of what that something else is when MPs are due to vote again on whatever May comes back with on 13 February.

Equal rights in Northern Ireland under threat as a result of Brexit 

Stepping aside from the chaos in Westminster for a moment, the impacts and the uncertainty of Brexit continue to loom. Under theGood Friday Agreement people born in Northern Ireland are entitled either to Irish or British passports (or both) and are guaranteed equal rights regardless of their nationality. 

Brexit risk undermining this and questions remain about how Brexit will create on the status of rights for different groups of people born or living in Northern Ireland depending on their citizenship status. This was covered in Politico this week and Daniel Holder, deputy director of the Committee on the Administration of Justice has written some pieces about the challenges that Brexit poses for citizens in Northern Ireland, recommend you read them- hereand here.

Updates & briefings on the Immigration Bill

Most you may have seen the row over the Immigration Bill this week when Labour u-turned on its whipping operation. Initially, the Shadow front bench told its MPs that Labour would not vote against the Immigration Bill at its second reading. After outrage from their own backbenchers and others, Labour shifted its position and announced that it would, in fact, whip its MPs to vote against the Bill. Despite Labour’s late decision to vote against the Bill, the government won the vote with a comfortable majority of 63. It is now moving on to Committee Stage for more scrutiny, although a date has yet to be announced.

Leaving aside the politics, let’s focus on the Bill itself. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill will end free movement of European Economic Area (EEA) nationals and their family members, making it possible for the Government to bring them under the domestic immigration regime. In doing so, it grants very wide-ranging powers to ministers, including Henry VIII powers, to modify primary or secondary legislation to achieve this aim. In combination with existing powers to make changes to the Immigration Rules through secondary legislation, Home Office officials will now have even greater powers to change immigration laws with little oversight from parliamentarians.

This is not the first piece of Brexit legislation, the government has used to claim extraordinary powers to make changes to our laws post-Brexit. As we wrote in our briefing to MPs back in November, virtually every piece of Brexit legislation introduced to Parliament contains broad delegated powers that can be used to undermine fundamental rights and weaken standards. There is a clear need to place proper safeguards and scrutiny mechanisms in place to limit these powers.

Here is a list of resources from our members and other third sector organisations on the Immigration Bill: 

Unison briefing ahead of 2nd reading of Immigration and Social Security Co-ordination 

Public Law Project: A No Deal, No Appeal: A Case for Amending the UK's Immigration Bill 

Children Society: Briefing ahead of 2nd reading of the Immigration Bill

February recess cancelled 

A No Deal Brexit means that Parliament has to get through a great number of Brexit legislation before 29th March. It, therefore, came as no surprise when Leader of House, Andrea Leadsom, confirmed this week that February recess is cancelled. 

To find out how the government is doing when it comes to preparing the statute book for exit, see Hansard Society’s Brexit Statutory Instrument Dashboard here and Institute for Government’s tracker of the progress of Brexit Bills here.

Public Law Project: the SIFT project 

Public Law Project, in partnership with the Hansard Society, has launched the SIFT Project to monitor and scrutinise these Statutory Instruments to check they conform to public law standards and do not undermine fundamental rights. In particular, PLP is tracking those instruments most likely to affect the UK’s most vulnerable populations.

As part of the SIFT project, PLP is eager to establish a network of organisations with subject matter expertise who can help to identify additional problems with Statutory Instruments, be they legal or policy problems.  PLP is keen to hear from organisations that would like to be involved in the network or who have been independently scrutinising Statutory Instruments. Immigration, social security and social welfare law, environmental law, equality law and human rights, labour rights, consumer protection, data protection and privacy and health and human services are areas of particular interest to PLP. If you think your organisation could be a suitable network member, please get in touch. Read more about the project and contact details here.

From questions around the replacement of EU funding that the third sector receives, the settled status scheme to the maintenance of fundamental rights, it is evident that Brexit will have significant impacts on civil society.  Mike Hawking from the Joseph Rowntree Foundation will join us to discuss the UK Shared Prosperity Fund and Kate Young from ChemTrust will discuss the impacts Brexit will have on chemicals and environmental policy. Join us to discuss this and more at our roundtable event in York on the 25th February. More details & sign up here.

Recommended reading

  • What is the National Assembly for Wales’ job in scrutinising and consenting to Brexit legislation? What legislative changes will the Assembly have to do to prepare for Brexit? All these questions and more are answered in our latest explainer on the National Assembly for Wales and Brexit, written by Gethin Rhys,  National Assembly Officer at at Cytûn (Churches Together in Wales). Available here.

  • Cytûn’s response to the Welsh government consultation on the future of Agriculture in Wales and Brexit is also available to download on our website here.

  • Immigration Law Practitioners Association: EU Settled Status Automated data checks research paper available here

  • Report on automated data checks in the EU settlement scheme availablehere  

  • Equality and Diversity Forum’s briefing for the Lords Committee Stage of the Trade Bill is available on our website here.

  • Northern Ireland Council for Voluntary Action has a great Brexit hub of information and updates, available here.

  • IPPR is out with a new report on state aid rules and Brexit, which explores the role of state aid rules in the Eu and the implications of Brexit for state aid policy. Read it here.


NewsletterMalene Bratlie