Another week of defeats for the Government in the House of Lords

This has been another week of defeats for the Government in the House of Lords- making it 10 in total. There are still opportunities to inflict further defeats on the Government on Tuesday 8th May (final day of Report) when amendments 95 and 99 that remove the time and date of exit day plus amendments on scrutiny and delegated legislation will be debated.

The real battle will be when the bill returns to the Commons, where it is unlikely that MPs will accept all of the amendments passed by peers. During ping-pong, peers may ask MPs to think again but according to Meg Russell from the Constitution Unit- “if the MPs don’t support the Lords’ position, the Lords will back down”. 

On Monday peers voted in favour 335 to 244 of allowing Parliament, not the Government, to decide what happens if they reject the deal negotiated with the EU. They also accepted amendment 51 (approval by Parliament of a mandate for negotiations about the UK’s future relationship with the EU) and  amendment 59 (requiring maintenance of refugee family unity with Europe).

An actual meaningful vote on the final deal
As expected the debate on the meaningful vote  (amendment 49) was heated . In essence the amendment gives Parliament a vote on the outcome of negotiations with the EU and during the debate the divisions on this issues within parties as well as between parties emerged.

Amid all the discussion about whether this amendment was an attempt to “thwart Brexit”, it was the Bishop of Leeds who reminded peers that the role of the House of Lords “was to scrutinise, improve and ask the Government to think again. That is what we are called to do and that is where the principle applies. Then it is up to the House of Commons and the Government to decide what they do with the arguments put forward from this place. Not to do that is to deny the appropriate role of this House in doing its job”. Here is a useful explanation of the implications of the vote on a meaningful vote.  

A recent blog from the House of Commons Library also point out that while significant, the amendment on a meaningful vote could potentially boost Parliament’s role in “in shaping the Brexit negotiations – it is a bit much to say that they would result in Parliament being able to control the outcome of the Brexit negotiations”. 

A step in the right direction for protecting the Good Friday Agreement & avoiding a hard border
Yesterday afternoon was the showstopper. Given the current impasse on what to do about the Irish border, Lord Patten’s amendment on the importance of avoiding a hard border and protecting the Good Friday Agreement was always going to be lively. The amendment (88)  was brought by Lord Patten and requires ministers to act in a way that is compatible with the Northern Ireland Act 1998 and further, that none of the powers in clauses 7,8,9 or 17 can be used to create, in effect, a hard border between Ireland and Northern Ireland. Although not mentioned explicitly in the amendment- the amendment was also about protecting the principles of the Good Friday Agreement. While peers across the House recognised the importance of protecting the GFA principles- there was some disagreement about the amendment itself and whether it was the appropriate vehicle for avoiding a harder border. In the end, however, peers voted 309 to 242 in favour of the amendment- a significant step in the right direction for protecting the Good Friday Agreement but it's also vital as this amendment must now go back to the Commons.

Passport and border controls in Northern Ireland
Much of the debate on the Irish land border so far (and also on the movement between Northern Ireland and the rest of the UK) has focused on the freedom of movement of goods, rather than freedom of movement of people. This point was made by Baroness O’Neill (Crossbench) who said that “if we are thinking about the principles of the Good Friday agreement, it is the movement of people and respect for people that is really much more important. We do not want another version of Windrush for Irish citizens”. 

At heart of this issue is of course that the current arrangements that form part of the Common Travel Area will change post- Brexit and we raised concerns about the potential of passport check and racial profiling in our briefing to peers ahead of Day 5 of Report Stage. Note that Lord Duncan (on behalf of the Government) agreed to write to Baroness O’Neill with further details on this issue. Also recommend reading the recent CAJ briefing (Committee of the Administration of Justice) which shows there are genuine concerns about the policing of border controls in Northern Ireland and some very specific concerns about racial profiling. 

Peers accept Government amendments to Clause 11
During yesterday’s debate, peers agreed to the new amendments to Clause 11, tabled by the Government. While the Welsh Government has reached an agreement with the UK Government, the Scottish Government are yet to be pleased. In essence, the new amendments proposed by the Government sets out that that consent of the devolved legislatures will normally be required for changes to UK-wide powers, and those powers will be held in Westminster for no more than seven years.  The devolved legislatures have 40 days to decide whether to give consent for these regulations. In the event of a disagreement, the UK Government will have the final word but UK Ministers would be under an express legal duty to provide this Parliament with a Statement, and, if provided, a statement from the devolved Administration on why consent was not being granted. 

Crossbencher and former Scottish judge, Lord Hope, had tabled an alternative set of amendments which the Scottish Government indicated that they would have been pleased with. The amendments requires that before regulations affecting Scotland’s legislative competence or the power of Scottish ministers, the Scottish administration must consent by approving a resolution of the Scottish Parliament (an Order in Council procedure). Lord Hope pointed out that consent is ‘fundamental principle’ of devolution and he could therefore sympathise with the Scottish Government on this issue. As he said, constitutionally, it would be inappropriate for the “for the powers of a representative and democratically elected Parliament, which the Scottish Parliament is, to be changed without its consent by subordinate legislation made by a Minister who is not accountable to the Scottish Parliament”. He did however, withdraw his amendments at the end of the debate, in light of the Government amendments. 


Last but not least

Barnier’s speech on Monday made it clear that without a backstop (for NI) there can be no Withdrawal Agreement “In December, the UK agreed that, unless and until another solution is found, Northern Ireland will maintain full alignment with the rules of the Single Market and the Customs Union which support North-South cooperation, the all-island economy, and the protection of the Good Friday Agreement"

  • Evidence given to the Procedures Committee this week saw Ministers claim there would be just over 800 SI’s to examine with the bill not the 1,000+ first estimated 

 

  • The Committee on Exiting the European Union on the process of leaving the EU heard evidence from Lord Lisvane that if the framework of the future relationship between the UK and the Union is NOT agreed (even if Withdrawal Agreement is agreed) then it is probably back to the drawing board

 

  • The House of Lords Secondary Legislation Scrutiny Committee (SLSC) has asked for evidence for its new inquiry which will investigate the criteria which should be applied in deciding whether a statutory instrument (SI) laid under clauses 7 to 9 of the European Union (Withdrawal) Bill should be upgraded from a negative to an affirmative procedure instrument. Deadline is 18th May, more information here.
Malene Bratlie