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22 December 2017

32: Great Repeal Bill – On the eighth day (of Christmas)

The eighth, and final, day of consideration of the EU (Withdrawal) Bill in Committee took place on 20 December.

The House considered:

  • Clause 13 and Schedule 5, which set out rules on the publication of, and rules of evidence for, retained EU law and other relevant documents and instruments;
  • Clause 14 (Interpretation) and Schedule 6, and Clause 15 (Index of defined expressions), which define the many terms used in the Bill (eg ‘domestic law’, ‘enactment’, ‘exit day’, ‘retained direct EU legislation’) and list where else in the Bill those definitions are found;
  • Clause 18 (Extent) which provides that the Bill applies to the whole of the UK (and may, to a specified extent, to Gibraltar);
  • Clause 19 (Commencement and short title) which specifies that certain provisions of the Bill come into force on the day the Bill becomes law, and provides that others (broadly, clauses 1 to 6, 11 and 13) do so on a day to be set by a Minister; and
  • General provisions relating to Clause 17 and amendments to specific pieces of legislation (Schedule 8) and additional acts which will be repealed (Schedule 9).

Political shenanigans going into the final day of Committee stage centred around whether there would be another Tory rebellion over the Government’s Amendment 381 to Clause 14 (interpretation), to specify the time and date of ‘exit day’ on the face of the Bill.

To head off a second backbench rebellion, the Government accepted a second amendment (Amendment 400) tabled by Tory backbench MPs to allow ministers to use delegated powers to change the time and date of exit day if the UK ended up leaving the EU on a different date to the one specified. With that concession made, the Government won the vote on its own amendment 319 to 294.

Labour are just as divided over Brexit. New Clause 13 was tabled by Chris Leslie, Labour, to try to ensure that provisions allowing the UK to stay in the Customs Union, as set out in the European Communities Act 1972 but set to be repealed by the Bill, would be enacted ahead of exit day. But the Labour frontbench whipped their MPs to abstain from voting for Leslie’s New Clause – presumably, in line with Labour’s official (but largely incomprehensible) policy that it wants the benefits of the customs union without actually being a member. So, despite 62 Labour MPs defying the whip and Conservative MPs Ken Clarke and Anna Soubry voting in favour, Leslie’s New Clause was defeated.

The Government also defeated a number of other New Clauses and amendments:

  • New Clause 54 (Ken Clarke, Conservative) to give the objectives set by the Prime Minister in her Florence speech the force of law and to provide that, if no implementation and transition period were achieved, exit day could not be triggered by a Minister;
  • Amendment 120 (Tom Brake, Liberal Democrat) to ensure that before March 2019 (or the end of any extension to the two-year negotiation period) a referendum on the terms of the deal has to be held;
  • New Clause 44 (Joanna Cherry, SNP) to require an independent evaluation of the impact of the Bill (once enacted) upon the health and social care sector; and
  • Amendment 349 (Paul Blomfield, Labour) to prevent Ministers using delegated powers to create criminal offences which carry custodial sentences.

The Bill has now completed its Committee Stage and will return for Report Stage on 16 January 2018 – MPs have already been putting down amendments. The Bill as amended in Committee can be seen here.

A couple of further points.

First, the part of the Day 8 debate which looked at Clause 13 and Schedule 5 contained plenty of fodder for future Pepper v Hart submissions (for non-lawyers, that’s using Parliamentary debates to inform what a statute means) in respect of how the courts are to interpret retained and transposed EU law, including on the status of the rather lengthy recitals which form part of EU Regulations and Directives.

Second, the Government gave the following commitment summarising its position on the ‘meaningful vote’ to be given to Parliament, following last week’s Tory rebellion (ie Amendment 7):

‘I am happy to give my right hon. Friend [Anna Soubry] an early Christmas present. I can give her the following assurance on behalf of the Government. The Government have accepted amendment 7. Our written ministerial statement on procedures for the approval and implementation of the EU exit agreement stands. There will be the following meaningful votes in accordance with that statement: on the withdrawal treaty, and on the terms of the future agreement. There will also be a withdrawal and implementation Bill, which the House will consider in detail, and of course all legislation is amendable.’

Quite how all these various votes will play out in 2018 is anyone’s guess! Thank you for reading the blog in 2017, best wishes for the festive season, and see you in 2018 (when some or all of these predictions may come true …)

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‘On the eighth day of Christmas my baby gave to me …’ (Destiny’s Child, 8 Days of Christmas)

 

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