It’s official: the only certainty is the uncertainty

Transition period: impact on the EU Withdrawal Bill

As the timetable of our departure from the EU becomes clearer, the confusion grows.

The Withdrawal Agreement, including the Transitional Agreement and other details – such as the divorce bill, Northern Ireland, mechanisms for dispute resolution, and a framework for a new deal needs to be agreed and signed off by end of this year. This is because the European Parliament has to vote on it in time for exit on March 29th 2019. However the powers in the Withdrawal Bill are not necessarily needed if as reported we are heading in the direction of renegotiating after transition to stay in the customs union or something similar.

The debate about transition continues following the publication of the  EU transition negotiation guidelines. These are worth looking at as they make clear the terms and conditions that are expected during a transition period. It is this that is leading to questions being asked about whether the EU Withdrawal Bill may in fact be needed, or may well be superseded by the Withdrawal Agreement and Implementation Bill.

The lack of clarity around transition was further exposed when Lord Lennie (Labour) questioned the Government's objectives for the  Brexit transition period. As Lord Bridges (previously Under-Secretary in DExEU) said “for there to be an implementation period there needs to be a treaty to implement. Under my reading of Article 50, it is impossible for us to negotiate a treaty during the process of Article 50. We can conclude that only after March 2019”.


Second reading of the Withdrawal Bill in the House of Lords  

The Withdrawal Bill has had its second reading in the House of Lords. Like in the House of Commons this is an opportunity for peers to debate key principles and the purpose of the bill, and also flag up any concerns or specific areas where they think changes are needed. Significant  More peers signed up to speak at this debate than any other in history- unsurprisingly the debates showed that there is widespread concerns among peers in areas of the bill that the Alliance wants to see improved. Click here for the Withdrawal Bill’s timetable in the Lords.

 As expected Lord Adonis (Labour) tabled the following amendment: “but that this House regrets that the bill makes no provision for the opinion of the people to be secured on the terms on which Her Majesty’s Government proposes that the United Kingdom withdraw from the European Union.” And this led to many during the course of the 2 day debate to reflect on the issue of “meaningful vote” and the prospect of a second referendum (very few takers).

What however is emerging is lack of clarity around the process of Brexit in terms of the order of things. Whilst the parliamentary process is as clear as it can be this is a parliamentary process  for which there is no precedent. Lord Taverne asked if there is no deal, when will the meaningful vote by Parliament take place and what the choice on offer will be?

It was left not to a Lord but a Bishop (Bishop Leeds) to articulate what for many is still not clear, that is, at the end of this process, what sort of Britain, or indeed Europe, do we want to inhabit? He also reminded us all that the referendum “tore off the veneer of civilised discourse in this country and unleashed—perhaps gave permission for—an undisguised language of suspicion, denigration, hatred and vilification”.

As Lord Lisvane said: “It is about what we have after Brexit; it is about parliamentary sovereignty and the long-term constitutional settlement.”

Below is a list of the principal concerns that peers raised. Do get in touch if you’re interested in a more comprehensive list of what different peers said about areas that may be of concern to your organisation.

1.Henry VIII powers & a sifting committee

The Henry VIII powers remain one of the most controversial issues in the bill. As expected, peers across the chamber addressed the breadth of the powers and how they can be used to sweep away rights and protections without parliamentary scrutiny. As Baroness Altmann (Conservative) said: “we must not allow the Bill to water down hard-won rights, for women, workers, the disabled and minorities that people in this country have relied on”.

Leader of the House of Lords Baroness Evans opened the debate on behalf of the Government stating that the  Secondary Legislation Scrutiny Committee (SLSC is an existing scrutiny committee in the House of Lords) will deal with statutory instruments in the bill.  This committee will

“incorporate the changed embodied by the new Commons committee into the terms of reference of the SLSC to allow it to recommend, within 10 sitting days, that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure to bring it in line with the procedures established in the other place”.

While Baroness Evans said she would bring detailed proposals before the Procedure and Liaison Committee in March, more clarification on the role of the committee is needed. Lord Hodgson(Conservative) asked if the purpose of the committee is “solely to decide which legislative route a particular regulation will follow - negative, affirmative, whatever- or will it undertake the scrutiny as well?”. Also noteworthy is that as a member of the Secondary Legislation Scrutiny Committee Lord Kirkwood (Lib Dem) said “the battle lines will be drawn on the content of Clause 7, Schedule 7 and, to a lesser extent Clause 11”.

Some peers were quick to question the robustness of the new Commons sifting committee that will deal with which pieces of retained EU law need further scrutiny. Lord Newby (Lib Dem) described the Commons committee as a “a very weak provision” and Lord Sharkey (Lib Dem) called the new committee “insufficient” because it is only advisory, meaning the Government does not have to follow through on its recommendations. The Hansard Society has suggested five areas where further changes are needed in order to effectively scrutinise statutory instruments and hold the Government to account.

2. Protecting devolution & Northern Ireland

Concerns that the bill significantly undermines devolution (principally clause 11) were raised several times during the debates. Lord McInnes (Conservative) pointed out that “clause 11 undermines our constitutional settlement”. Lord Morris (Labour) expressed his dissatisfaction, saying that “the granting of powers to a Westminster Minister to change an Act of a devolved institution without any input from those legislatures is totally unacceptable”.

It’s especially worth taking a look at Lord Hope’s (Crossbench and retired Scottish judge) speech on how hard-won devolution settlements must be protected in the bill. He highlighted his intention of bringing forward amendments to improve not only Clause 11 but also the wide-ranging powers in Clauses 7-9.

Whilst the issue of the Irish border also remains a concern among peers, the wider implications of the bill for the Belfast Good Friday Agreement and the subsequent devolution settlement were raised by peers. Lord Hain told the House that any restriction on the Irish border “would completely undermine the Good Friday Agreement”. Michel Barnier’s meeting with the Northern Ireland Affairs Committee, reported yesterday, suggests that as yet there is no agreement on a key part of the Phase One deal in December on the Irish border.  

3. Environmental principles

To achieve a green Brexit EU- derived environmental principles must be protected and there must be appropriate institutions in place to enforce those principles and hold the Government to account. Baroness Jones (Green), who voted leave, shared her concerns about how the bill fails to protect those principles, describing the bill as “fundamentally flawed from an environmental and social perspective”. Like Caroline Lucas warned repeatedly during the debates in the Commons, Lord Krebs (Crossbench) also starkly reminded peers that there must be an environmental body put in place before exit day to avoid an environmental governance gap.  

4. EU Charter of Fundamental Rights

While MPs rejected the amendment to maintain the EU Charter (only by 18 votes) many peers remain deeply concerned about the Government’s decision to leave it out of the bill. Lord Wilson (Crossbench) said he was “baffled by the exclusion of the EU Charter of Fundamental Rights” and Baroness Kennedy (Labour) said that the exclusion of the Charter “should set alarm bells ringing because it is telling us that rights are not a high priority for this Government”. Baroness Blackstone, Baroness Janke, and Lord Cashman also quoted the open letter published by the Equality and Human Rights Commission which states that losing the Charter creates a human rights hole. It’s also worth noting that in the report published the day before second reading, the Joint Commons and Lords Committee on human rights concluded that the “exclusion of the Charter from domestic law results in a complex human rights landscape which is uncertain” and that uncertainty is “likely to undermine the protection of rights”.

5. Retained EU Law

There is still a lack of clarity around the scope of retained EU law. As Lord Norton (Conservative) said during the debate “the “supremacy principle” that the bill seeks to retain is imprecise in terms of scope. As the Constitution Committee’s recent report on the bill stresses, this constitutes a fundamental flaw at the heart of the bill and is alien to the UK constitutional system. In the words of the report: “Retained direct EU law should be designated as domestic primary legislation”.




 

Malene Bratlie