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.
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 Government successfully defeated those new clauses and amendments put to a vote:
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.
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:
Later, with the rebels not budging, Dominic Raab gave three assurances at the despatch box:
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:
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:
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.