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 Committee stage starts on Tuesday.
This post looks at the types of amendments being proposed.
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:
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.
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:
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 …
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).
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 Procedure committee propose that this new committee:
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.
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:
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.