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13 April 2018

43: Great Repeal Bill – Eleven days

The House of Lords concluded its 11 days of Committee stage debate on the Bill on 28 March. In total, the Lords spent over 115 hours in deliberation (with some very late sittings), and considered some 372 amendments. The final amendment was moved by Lord Adonis – perhaps appropriately, as he was one of the most active participants in the debates.

We have previously posted on Day 1, on the debates on Days 2 to 5 so far they concerned amendments relating to particular aspects of EU law or policy, and on the debates so far as they concerned certain technical aspects.

This post covers the remainder of the debates (Days 6 to 11).

Days 6 to 8: Can we keep…?

Days 6 to 8 covered Clauses 9, 16 and 17, with the Lords continuing their consideration of the main powers in connection with withdrawal, regulations, and consequential and transitional provisions.

Many of the amendments debated were similar to those in Days 2 to 5, in that they in sought to preserve, on the face of the Bill, particular aspects of EU-derived law or policy, or to require the government to explain (eg by means of a report to Parliament) how equivalent provision would be made domestically after Brexit.

The following (non-exhaustive) list gives a flavour of the breadth of issues debated:

  • Day 6: Clinical trials, data protection, rail and road freight, aviation, the customs regime, the chemicals regulation (REACH), financial services;
  • Day 7: Professional qualifications, food standards, consumer law, broadcasting and media regulation, professional sport, the Good Friday Agreement, the Common Travel Area, the European Bank for Reconstruction and Development, the European Investment Bank, the EU’s digital single market, refugee family reunion rights; and
  • Day 8: Insolvency and restructuring, violence against women and girls, child maintenance claims, local government consultation, regulation of medical devices, public health (eg food additives and labelling), recreational boating.

The Government’s response to all these issues was consistent (as it had been on earlier days): these matters may be of mutual benefit to the UK and EU, but remained subject to negotiation; substantial progress had been made so far, and the Government would endeavour to ensure that it made good progress in the next phase; it hoped to be able to provide more information on Report; Parliament would have a meaningful vote on any final deal; the Government was already bringing forward primary legislation in specific areas.

As the debate went on, the Lords got a little peeved. As Lord Cormack put it on Day 7:

‘I have heard every word of this debate… Quite honestly, I say with due respect to my noble friend [Lord Callanan, Minister of State, Department for Exiting the European Union], appreciating the difficulty of his task, that all he has presented to the House is a stone wall. Frankly, this is not good enough.’

Days 9: Devolution

On Day 9, the Lords considered clauses 10 and 11, which concern devolution.

The Bill currently provides, in clauses 10 and 11, that transposed EU law cannot be modified by the devolved legislatures, even if it concerns areas within the competency of the devolved administrations (eg agriculture). The Government has consistently defended this approach as necessary to protect the integrity of the UK single market, pending the development of new UK-wide frameworks. The Scottish and Welsh governments are opposed – they think such matters should be devolved, in accordance with the devolution settlements.

The Government had promised at Commons Committee stage to bring forward amendments to Clause 11 at Commons Report stage, but it failed to do so (as discussed here), as discussions with the Scottish and Welsh governments (and Northern Irish civil servants) were ongoing. The Lords had tabled a number of amendments to clauses 10 and 11.

However, the Government stole a little of their thunder by publishing on 9 March, its own Framework Analysis. That identified 153 areas of EU law which intersected with the devolved competence of the devolved administrations. Somewhat surprisingly, it concluded that, of those 153 areas, there were:

  • 49 policy areas where no further action was required;
  • 82 policy areas where non-legislative common frameworks may be required; and
  • 24 policy areas that were subject to more detailed discussion to explore whether legislative common framework arrangements might be needed, in whole or in part.

This enabled Lord Keen to say in debate that:

‘… in only 24 areas of the 153 was it anticipated that we will need to keep having legislation that works across the whole United Kingdom’.

Based on this analysis, the Government tabled its own amendments to Clause 11 (amendment 302A etc) which, as Lord Keen explained:

‘… [T]ake the existing Clause 11 and effectively turn it on its head. Their effect is that by default on exit day any decision-making powers currently held by the EU in areas that are otherwise devolved would pass directly to our devolved institutions without first being diverted through Westminster. The amendments then give UK Ministers powers to apply targeted and temporary limitations on competence to modify retained EU law, which would in essence have the effect of maintaining existing UK frameworks. We envisage that they will be used in those specific areas where we have identified that a future framework for the United Kingdom may be needed. That would ensure that in those areas the current common approaches established by EU law will continue to apply until we – the United Kingdom Government and the devolved Administrations – can together determine the form that the new bespoke UK framework will take…’

Lord Keen believed that these amendments addressed the concerns of the Scottish and Welsh Governments, but acknowledged that final agreement had not yet been reached, with discussions ongoing through the Joint Ministerial Committee meetings.

As this is Committee stage, there was no vote on the Government’s amendment, and it may be further modified before being voted on at Report stage. While it may not be enough, in its current form, to satisfy all those in the devolved administrations, it does seem to us that the Government has made significant progress in this area, removing a fairly significant hurdle in the path of the Bill.

Days 10 and 11: More technical matters

Debates on Days 10 and 11 focussed on more technical, but none the less important, matters, such as debating whether:

  • to modify (again) the definition of ‘exit day’, such that it was once again a matter for the Government, rather than stated on the face of the Bill;
  • to limit the powers, in the Bill, authorising Ministers to create bodies which could themselves create rules and regulations (so-called ‘tertiary legislation’) – a similar issue was debated on Day 6 in connection with the powers in the Bill to impose new fees and charges;
  • the power granted to Ministers in clause 17(1) to (3) of the Bill, to ‘make such provisions as the Minister considers appropriate in consequence of this Act’ constituted a unacceptable Henry VIII power (as thought the Lords’ Constitution Committee) or ‘a standard type of power contained in many Acts of Parliament to deal with consequential issues’ (as thought Lord Keen);
  • the extent of the duty in Schedule 5, which requires the Queen’s printer (identified by their Lordships, after some confusion, as Jeff James, Chief Executive of the National Archive) to publish EU regulations, decisions and Treaties, in order to provide a record of the law on which retained EU law is based, and the effect of a Minister deciding that something did not need to be published;
  • there should be a sifting process for scrutiny arrangements for delegated legislation under Schedule 7 (similar to the ‘triage’ process similarly proposed in the Commons); and
  • the power granted to Ministers to modify retained EU law in Schedule 8, paras 3 and 5 as if it were secondary legislation was unacceptable.

Report stage starts on 18 April, and the list of amendments grows daily. Even a cursory glance indicates that the long hours in Committee have not been sufficient to change the minds of many of their Lordships.

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‘Eleven days I will never forget’ (Cyndi Lauper (feat. David Byrne and Fatboy Slim), Eleven Days)

Written with Aaron Nelson

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