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26. Great Repeal Bill – Ch-Ch-Ch-Changes

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26. Great Repeal Bill – Ch-Ch-Ch-Changes
Leave your thoughts David Mundy

By David Mundy

Aaron Nelson

By Aaron Nelson

Parliament resumes today (13 November) after a short recess, during which MPs will no doubt have got to grips with the ever-growing list of amendments tabled in respect of the European Union (Withdrawal) Bill – the Bill’s Committtee stage starts on Tuesday.

This post looks at the types of amendments being proposed.

Exit and future EU relationship

The first type are those which seek to influence the UK’s future relationship with the EU, by committing the Government to a particular form of Brexit, or to increase Parliament’s role in the UK’s withdrawal. They are essentially ‘political’ in nature.

Typical examples of each are:

  • Amendments 63 (Chris Leslie, Labour) and 69 (Ian Blackford, SNP), which seek to ensure that the UK remains in the EEA and Customs Union; and
  • Amendment 53 (proposed by Chris Leslie, Labour), which would amend clause 1 ‘to ensure that the UK does not repeal the 1972 Act and exit the EU unless and until a new Treaty establishing a future relationship between the UK and the EU has been agreed and ratified by Parliament’ and NC17 (again, Chris Leslie), which would require Parliament to authorise payment of the ‘divorce bill’.

The Government is likely to oppose this type of amendment on the basis that it needs a free hand in the negotiations, and the Government’s whips will almost certainly see to it that the Opposition’s amendments (ie those laid in the name of Jeremy Corbyn, such as amendments 43 to 45) are defeated. But, if MPs across the Commons feel that Parliament is being side-lined unnecessarily, support may coalesce around amendments proposed by backbenchers. With enough support, such amendments may expose fault lines within the Cabinet about the sort of Brexit we are heading for. The PM moved to reassure the Brexiteers this weekend, writing in the Telegraph that she wants to amend the Bill to set the date of Brexit at 29 March 2019.

Retaining existing EU rights

The second type of amendment seeks to preserve particular EU rights post-Brexit. Most significantly, amendments have been proposed from both sides of the House to retain the Charter of Fundamental Rights (which would be disapplied by the Bill) – see Amendments 8 (Dominic Grieve, Conservative) and 46 (Jeremy Corbyn, Labour). This was one of the most extensively discussed issues at Second Reading, and we discussed it in some detail in Blog 23.

Other amendments have been proposed to ensure that citizens can continue to rely on:

  • rights granted under the EU Treaties and Directives (see Amendments 70 (Ian Blackford, SNP) and 94 and 95 (Kerry McCarthy, Labour)); and
  • general principles of EU law and the right to claim damages for breach (ie the rule in Francovitch) (see Amendment 9 (Dominic Grieve, Conservative).

Particular amendments have also been proposed in respect of environmental protections (NC27 and Amendments 96 and 138) and animal welfare (NC30).

The position in respect of EU rights is complicated by the fact that the Bill would not automatically transpose the text of EU Directives into UK law (unlike other EU law): Directives are not ‘EU derived domestic legislation’ (clause 2) (although a Directive may have been implemented in the UK by means of domestic legislation, which is itself saved) or ‘direct EU legislation’ (within the meaning of clause 3), and article 4 seems to save rights etc. only, rather than transposing the actual text. Nor ‎is the Queen’s printer required to print the text of directives in Schedule 5, although he ‘may’ do so under para 1(3) or (4).

Of course, the question could be asked ‘Why would the UK want or need to transpose the text of an EU Directive that hasn’t been implemented – isn’t the implementing UK legislation enough on its own?‎’ But not doing so may cause practical difficulties if a lot of the detailed provisions are in the underlying Directive. If the text isn’t transposed, where would one look for a comprehensive statement of the applicable law?

The solution proposed by the Bill appears to be the grant to Ministers (clause 7(1)) of a power to make regulations to ‘prevent, remedy or mitigate any failure of retained EU law to operate effectively … or any other deficiency in retained EU law’ including where (clause 7(2)) ‘retained EU law … (f) does not contain any functions or restrictions which … were in an EU directive and in force immediately before exit day … and it is appropriate to retain.’ Which brings us on neatly to …

Use of delegated powers

A third type of amendment seeks to limit the grant or use of delegated powers (including Henry VIII powers), both by precluding the use of delegated legislation entirely in certain policy areas, and by increasing Parliamentary scrutiny of delegated legislation.

In respect of the first, see for example, Amendment 25 (Jeremy Corbyn, Labour) which would preclude any use of the clause 7 order-making power to reduce individual rights, modify the Equality Act or reduce environmental protections. Similarly, New Clause 2 (another Labour amendment) would preclude other delegated powers (ie outside the Bill) from being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.

Similarly, Amendment 2 (Dominic Grieve, Conservative but also supported by Labour MPs) would prevent clause 7 ‘order making’ power from being exercised save where a Minister was satisfied that certain conditions were fulfilled (eg it was necessary, proportionate, would not impact on rights or freedoms and was not of constitutional importance).

Scrutiny

Numerous amendments have been tabled to increase Parliamentary scrutiny of delegated legislation under the Bill. For example, Labour’s Amendments 33 to 41 would establish a committee to review such legislation and to decide what level of scrutiny it should receive, with matters of policy interest to be subject to the approval of both Houses and to amendment. The Liberal Democrats have set out a similar scrutiny procedure in their Amendment 129.

In pursuing such amendments, MPs will feel emboldened by the conclusions of the Commons’ Procedure Committee (chaired by the Conservative Charles Walker MP) into the scrutiny of delegated legislation under the Bill:

‘The Bill as it stands makes no provision for amendment to the standard statutory procedures for control and approval of delegated legislation which have been in effect since 1947. There is considerable concern in the House and elsewhere about the scale and scope of the powers claimed to amend existing legislation. While these powers may be necessary, in view of the task which the Government envisages, their exercise must be subject to thorough and appropriate scrutiny by Parliament. The Government’s proposals for Parliamentary scrutiny, resting as they do entirely on existing procedures, do not go far enough. The task for the House is unique and unprecedented and requires a scrutiny mechanism to suit … We think … a committee of the House which has an overview of the entire process of legislative change proposed and which has the capacity to swiftly develop both specialist expertise in the field and judgment as to which proposals made by the Government merit further examination. The scrutiny model operated by the European Scrutiny Committee can readily be adapted to this purpose.’

The Procedure committee propose that this new committee:

  • examine each instrument, whether affirmative or negative, laid before the House and determine which was of sufficient political and / or legal importance to require further consideration by the House (a resolution of the House would place a duty on Ministers not to bring any instrument into force until it had been cleared);
  • recommend such instruments for debate in a general committee or, in exceptional circumstances, on the floor of the House; and
  • be empowered to recommend that defective or inadequate instruments be revoked and re-made or, if in draft, withdrawn and re-submitted.

External stakeholders would have an opportunity to make representations to the committee about the content of any instrument, and the committee would be required to take account of the reports of the Joint Committee on Statutory Instruments, which would continue to undertake technical scrutiny of all such instruments.

Devolution

The final category comprises the numerous amendments tabled by the SNP and Plaid Cymru to ensure that EU functions in respect of devolved matters (eg agriculture, fisheries, environmental regulation, transport) are transferred to the devolved administrations rather than Westminster and Whitehall (as the Bill currently provides). SNP leader Nicola Sturgeon and Plaid’s Carwyn Jones have said the Bill will need to be ‘substantially amended’ before legislative consent is given by the Scottish or Welsh parliaments. In a joint letter to the Prime Minister, they wrote:

‘We hope [our amendments] will be received in the way they are intended – as a constructive contribution by the devolved administrations, which would enable progress to be made among the governments in a way which respects the hard-won devolution settlements of the UK.’

Unsurprisingly, no amendments have been proposed by the DUP in respect of Northern Ireland, due to the ‘confidence and supply’ agreement in place with the Government.

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‘Ch-ch-ch-changes, turn and face the strange’ (David Bowie, Changes)

13 November 2017

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