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15 December 2017

31: Great Repeal Bill – Rebel rebel

Days 6 and 7 of Committee Stage on the Bill took place on 12 and 13 December. The newspaper headlines have, understandably, focussed on the first defeat for the Government – Dominic Grieve’s amendment to clause 9 (Amendment 7) was passed by the House after 11 Tory MPs rebelled against the Government whip – but there have actually been a number of Government concessions this week.

Day 6: A concession on scrutiny

On Day 6, MPs considered clause 7 (power to make regulations in order to prevent, remedy or mitigate any ‘failure of’ or ‘deficiency in’ retained EU law) and certain related amendments to other parts of the Bill.

As discussed here, these powers are a particular controversial aspect of the Bill, because they would authorise a Government Minister, by means of regulations, to modify not only secondary legislation (ie other regulations, orders and rules), but also primary legislation (ie Acts of Parliament) – the now (in)famous ‘Henry VIII powers’. MPs were also concerned that there would be inadequate scrutiny by Parliament of such changes. The Government’s justification for these delegated powers was set out in the Delegated Powers Memorandum, which was lodged with Parliament at the same time as the Bill. The Government gave three reasons why these powers are necessary: time (the Government now has about 15 months to get UK ready for exit); practicality (it could not all be done on the face of the Bill); and flexibility (the negotiations are ongoing, the Government can’t reveal its hand and, anyway, the outcome is unknown).

Debate on Day 6 focused upon how these powers are framed, both in terms of the purpose and circumstances in which they can be used, and in terms of the nature of the legal changes they can be used to achieve. MPs were particularly concerned that:

  • the order-making powers could be used when ‘appropriate’ rather than ‘necessary’;
  • they were being asked to rely on assurances given by Ministers at the despatch box that the powers would only be exercised in limited ‘correcting’ circumstances, and not for broader policy changes, rather than having that explicitly enshrined in the Bill;
  • these powers would be on the statute book before the conclusion of the withdrawal agreement, and before MPs had their ‘meaningful vote’ on its terms; and
  • given these perceived shortcomings, the Bill did not provide a greater role for Parliament in scrutinizing draft delegated legislation.

The Government successfully defeated those new clauses and amendments put to a vote:

  • new clause 63 (Jeremy Corbyn, Labour) to require the Government to establish new domestic governance arrangements following the UK’s exit from the EU for environmental standards and protections, following consultation;
  • amendment 49 (Yvette Cooper, Labour) to place a general provision on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary;
  • amendment 124 (Tom Brake, Liberal Democrat) to prevent the regulation-making powers being used to create barriers to the UK’s continued membership of the single market;
  • amendment 158 (Stephen Doughty, Labour) to prevent the powers of a Minister of the Crown under Clause 7 of the Bill being used to fix problems in retained EU law from being exercised to amend the Scotland Act 1998 or the Government of Wales Act 2006; and
  • amendment 25 (Matthew Pennycook, Labour) to prevent the Government’s using delegated powers under Clause 7 to reduce rights or protections, such as under the Equality Act 2010.

But, significantly, the Government indicated earlier in the week that it would accept the recommendations of the Procedure Committee, which proposed the establishment of a new committee of the House of Commons to sift through statutory instruments brought forward under the Bill to establish whether they would be subject to negative or affirmative procedure. These changes can now be found in amendments 392 to 398 to Schedule 7 of the Bill, and will be made at Report Stage.

The Government has also proposed its own amendment 391 to Schedule 7, requiring it to publish (with any SI made under clauses 7, 8 or 9) an explanatory statement that any exercise of the powers is ‘no more than is appropriate’ and complies with the Equality Act 2010. This fulfils the Government’s promise to make this change made earlier in the Bill debates.

In summary, the Government retained its ‘Henry VIII’ powers, but the Commons gained a greater role in scrutinizing legislation introduced under them. A score draw perhaps.

Day 7 – A government defeat

On Day 7, MPs considered clauses 8, 9 and 17 (delegated power for ministers to make secondary legislation for specific purposes, including implementing the Withdrawal Agreement). They also considered clause 16 and Schedule 7 (scrutiny provisions) but the sting had largely been drawn by the Government’s earlier concessions (the only division, on Labour’s Amendment NC1, was defeated).

The majority of the Parliamentary debate, and political heat, focussed on Clause 9, which would provide the Government with the legislative authority to use secondary legislation to implement the Withdrawal Agreement. The debate centred on how this clause would operate in conjunction with the Government’s proposals for a ‘meaningful vote’ on the final deal in Parliament, its proposed EU (Withdrawal Agreement and Implementation) Bill and an amendment to name ‘exit day’ in the Bill as 29 March 2019.

To try to head off a potential Tory rebellion on the matter, which had coalesced around Dominic Grieve’s Amendment 7, the SSExEU issued a written ministerial statement early yesterday morning (before the debate), to explain how parliament would be involved in approving the withdrawal agreement and the subsequent trade agreement with the EU:

‘…the government has committed to hold a vote on the final deal in parliament as soon as possible after the negotiations have concluded. This vote will take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms for our future relationship. The government will not implement any parts of the withdrawal agreement – for example by using clause 9 of the European Union (Withdrawal) Bill – until after this vote has taken place.’

Later, with the rebels not budging, Dominic Raab gave three assurances at the despatch box:

‘First, secondary legislation passed under clause 9 will either be affirmative or considered by the [new scrutiny] committee …
Second, the Government is committed to publishing in draft such statutory instruments as far as possible as early as possible to facilitate maximum scrutiny, which is another point we discussed.
Third, we expect that the vast majority of statutory instruments enacted under clause 9 will not come into force until exit day when the withdrawal agreement comes into force. But I can give [Dominic Grieve] and the House the concrete assurance, following the timeframe set out in today’s written ministerial statement, that none of the SIs, none of the statutory instruments under clause 9, will come into effect until parliament has voted on the final deal.’

Dominic Grieve, and others, were not sufficiently reassured. He considered that, given the Government had agreed to the EU (Withdrawal Agreement and Implementation) Bill, a resolution or vote was inadequate – that Bill must be passed first, so that Parliament truly had a meaningful say on the withdrawal agreement – and that requirement should be on the face of clause 9, otherwise the clause 9 power, as drafted, could be used to implement the withdrawal agreement before Parliament had its say. He was not sufficiently reassured by the Government’s verbal guarantee that clause 9 wouldn’t be so used, or by promises of additional scrutiny, publishing draft SIs ‘as early as possible’, or commitments to delay the coming into force of such SIs until after such a vote. Nor was he convinced by the Government’s arguments that the clause 9 power was needed to make SIs before the deal was approved by Parliament (because there may not be enough time to make them afterwards), or that the UK’s negotiating position would be undermined by a need for Parliamentary approval.

Underlying this ‘intransigence’, in my view, is that Grieve has long been frustrated by what he perceives as an unnecessary haste in implementing Brexit – he has previously stated that he thinks the Article 50 notice was served before the Government was properly ready to deal with the negotiations – and feels that Government has shut its ears to anyone who would counsel for a careful and gradual extrication.

So, he stood his ground and, when the amendment was put to a vote, the Government lost by 4 votes. It remains to be seen what the effect is – the separate ‘meaningful vote’ may now be dropped entirely, a rejection of the deal (and the consequent protracting of the negotiations) may be more likely. It does show that the government is vulnerable when the rebels find common cause with the Opposition, and they might be brave enough to try again (Stephen Hammond indicated on R4’s Today that he might vote against setting ‘exit day’ as 29 March 2019). It also puts grist in the mill of the Lords, who have always indicated they want to scrutinize the Bill carefully.

There were two other votes re Clause 9, both of which the Government won:

  • Amendment 30 (Jeremy Corbyn, Labour) to remove the power in the Bill to enable Ministers to amend the Bill itself; and
  • Amendment 241 (Dr Philippa Whitford, SNP) to prevent changes being made to EU reciprocal healthcare arrangements after Brexit without consent from Parliament and the devolved legislatures.

In respect of the other clauses considered, Clause 8 would give Government the power, until two years after exit day, to make secondary legislation to prevent or remedy any breaches of the UK’s international obligations that might arise from Brexit. This clause was passed unamended (although secondary legislation made under it will also be subject to the scrutiny and explanatory statement requirements set out above in respect of Clause 7). The Government defeated:

  • New Clause 22 (Heidi Alexander, SNP) to prevent the Government using the powers of the Bill to withdraw from the EEA, or breach its obligations under the EEA Agreement; and
  • Amendment 26 (Jeremy Corbyn, Labour) to prevent the Government using delegated powers under Clause 8 to reduce rights or protections, such as under the Equality Act 2010.

Clause 17 grants further powers to make consequential and transitional provisions. A minor Government amendment has been made to Clause 17(5) to reflect the Government’s intention to amend the Bill to define ‘exit day’ as 29 March 2019.

The next, and final, day of consideration of the Bill in Committee takes place on 20 December.

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‘Rebel rebel … You wanna be there when they count up the dudes.’ (David Bowie, Rebel Rebel)

 

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