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38: Great Repeal Bill – It All Keeps Adding Up…

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38: Great Repeal Bill – It All Keeps Adding Up…
1 Comment David Mundy

By David Mundy

Aaron Nelson

By Aaron Nelson

Committee stage – line by line examination of the Bill – began in the Lords on 21 February.

In accordance with the ‘Instruction’ (the timetable) of 7 February 2018, the Lords intend that the Bill should complete its Committee stage in 10 days, with the following subject matter expected to be covered each day:

  • days 1 to 3 (21, 26 and 28 February) – Clauses 1 to 6, covering repeal of the European Communities Act 1972 and the retention of existing EU Law;
  • days 4 and 5 (5 and 7 March) – Clauses 7 and 8, covering the main powers in connection with withdrawal;
  • days 6 and 7 (12 and 14 March) – Clauses 9, 16 and 17, continuing consideration of the main powers in connection with withdrawal, and also regulations and consequential and transitional provisions;
  • day 8 (19 March) – Clauses 10 and 11, covering devolution;
  • day 9 (21 March) – Clauses 14 and 15, covering interpretation of the Bill’s terms and the index of defined expressions; and
  • day 10 (26 March) – Clauses 12, 13, 18 and 19, covering financial and other matters, and general and final provisions.

The number of Lords’ amendments of amendments and new clauses to the Bill increases daily. The ‘marshalled list’ of amendments (available here) orders these in accordance with the Instruction. Amendments tabled at Committee stage can be characterised as ‘probing’ amendments, ie they seek to clarify the Government’s thinking on the key matters. In the event that the Lords consider the Government do not provide satisfactory answers in Committee, amendments are then proposed at Report stage which can be voted into the Bill to enable MPs (when the Bill returns to the Commons) to give those issues further consideration.

On Day 1 (21 February) the Lords’ debate focussed on four main amendments.

First, Lord Wigley’s proposed an amendment to ensure continued membership of the customs union post-Brexit. Unsurprisingly, this provoked a wide-ranging debate on the UK’s future trade relationship with the EU and the wider world: was it in the UK’s national interest to be part of the EU, the EEA, the (or a) customs union, to maintain regulatory alignment with the EU, or to diverge? About 80% of their Lordships seemed in favour of maintaining a customs union, largely on grounds of national economic prosperity, but the DExEU Minister (Lord Callanan), rejected that as the ‘worst of all possible worlds’ (echoing Rees-Mogg’s ‘vassal state’ argument).

Of course, this debate took place before Thursday’s Cabinet meeting at Chequers to discuss the Govenrment’s preferred ‘future trade relationship’. According to reports on Wednesday, the Government had wanted to put all its (economic activity) eggs in three baskets: ‘complete alignment’, where the UK would follow EU rules; ‘managed mutual recognition’, where both would agree to common objectives but each would choose its own rules; and a third basket where the UK can abandon EU regulations and do whatever it wants. This was immediately rejected by the EU as ‘cherry-picking’ (because not everything is in the first basket), and Mr Barnier has rejected mutual recognition (the second basket) as unworkable – it would require fundamental changes in EU institutions to accommodate a mutual recognition environment. Leaks from Thursday’s Cabinet meeting suggest that ‘divergence won the day’ – meaning that the first two baskets may be rather empty.

But, it is not clear how (third basket) ‘divergence’ squares with the Government’s proposed frictionless Irish border, or the UK/EU December agreement to ‘no regulatory divergence’. In debate, the Lords didn’t see how frictionless trade could be achieved other than by the customs union or something very like it (talk of a technological solution was dismissed), and Lord Callanan merely said that the Government continued to support the Good Friday Agreement. We will see…

Second, the Lords debated Lord Adonis’ amendment to replace the fixed date of ‘exit day’ in the Bill with a requirement that the date be set in EU (Withdrawal Agreement and Implementation) Bill – to be passed after Parliament takes the decision to approve the withdrawal agreement in principle (the ‘meaningful vote’). Lord Callanan opposed that change on the basis that ‘it would put the legislative cart before the diplomatic horse’ as both the withdrawal agreement and the implementation period are still matters for negotiation (and will have their own Bill), while this Bill was designed to be ‘agnostic’ on the negotiations, and merely to prepare the statute book for withdrawal.

Third, Lord Foulkes of Cumnock moved an amendment requiring legislative consent motions from the devolved administrations before the ECA 1972 was repealed. This was borne largely out of frustration that the Government’s own amendments to Clause 11 (which concerns how EU powers affecting devolved policy areas will be split between Westminster and the devolved administrations), haven’t yet appeared. Lord Callanan merely said they were coming during Committee stage, as promised. Another debate put off for another day.

Fourth, Lord Hunt of Kings Heath moved an amendment to continue the UK’s membership of Euratom – essentially on the basis that it worked well, and the UK public hadn’t voted to leave Euratom.

Lord Callanan explained that, while the Euratom treaty was legally distinct from the EU Treaty, Euratom had the same membership (all 28 member states, and no one else) and made use of the same institutions. Moreover, the decision to leave Euratom formed part of both Houses’ consideration of the European Union (Notification of Withdrawal) Act 2017 (but, importantly in my view, was not authorised by that Act). So, when the UK formally notified its intention to leave the EU, it also commenced the process for leaving Euratom. Once the UK has left, it will need an International Atomic Energy Authority (IAEA) (not Euratom) accredited safeguards regime, nuclear co-operation agreements with the USA, Canada, Australia and Japan, a nuclear agreement with the EU and an export licence regime. The precise nature of the UK’s future relationship with Euratom was part of the next phase of negotiations, which were yet to start, but the UK will be seeking a close relationship.

Lord Hunt did not think that Euratom’s identical membership was a credible reason to leave, and it was ‘inane’ to leave Euratom, but maintain the same standards and keep a close and warm relationship with them. He said this matter would be revisited at Report stage – it just keeps adding up!

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‘It all keeps adding up, I think I’m cracking up, Am I just paranoid? A ya-ya-ya’ (Green Day, Basket Case)

23 February 2018

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