Meaningful votes expected as the EU Withdrawal Bill returns to the Commons

Last day of Report Stage of the Withdrawal Bill took place on Tuesday - which saw another four Government defeats from the Lords- making it fourteen in total. Unless significantly amended at Third Reading (16th May), the bill that will return to the Commons looks very different to when it first entered the House of Lords - these are the amendments (the amendment number in brackets) that peers are asking MPs to consider again: 

 1. UK to negotiate participation in a customs union with the EU (1)
 2. Enhanced protection for certain areas of EU law, including employment rights, equality protections, health and safety entitlements, consumer standards and environmental standards (11)
 3. The EU Charter of Fundamental Rights is maintained (15)
 4. Ministers ability to specify in regulations when individuals may bring challenges against the validity of retained EU law is removed (18)
 5. The right of action in domestic law if there is a failure to comply with any of the general principles of EU law is now included in the bill (19)
 6. In Clauses 7 and 17 delegated powers are no longer to be used “as the minister considers appropriate” but only to be used when “is necessary” (31)
 7. A meaningful vote on the final deal which will allow Parliament to set the terms if they reject the final deal negotiated with the EU (49)
 8. The Government are required to seek approval from Parliament on its negotiating mandate about the UK’s future relationship with the EU (51)
 9. Maintenance of refugee family unity within Europe (59)
10. Continued North-South co-operation and the prevention of new border arrangements between Ireland and Northern Ireland (88)
11. The UK cannot be prevented from replicating EU law or continuing to participate in EU agencies after Brexit (93)
12. Exit date is removed from the Bill (95)
13. Continued membership of the European Economic Area (110A)
14. The scrutiny procedure of statutory instruments is strengthened  (70)
 

It is no doubt that the bill returning to the Commons is better. The House of Lords has done its job as a revising chamber and effectively voted for proper parliamentary scrutiny of delegated powers, protection of fundamental rights and standards as well as avoiding a hard border between Ireland and Northern Ireland. All eyes will now be on the Commons and whether they’ll accept the changes made by peers. If some of the changes are rejected by MPs by a slim majority, peers may ask the Commons to think again. The Standard reported yesterday that Theresa May plan to fast-track the bill to reverse the defeats in the Lords, according to the Standard, “sources say the Bill could return to the House of Commons as early as May 23”. 
 

Government changes to the bill  
It is also important to note that the Government have also made a number of concessions during the bill’s passage in the Lords. When it comes to limiting the extent of delegated powers, the Government agreed to remove Clause 8 of the bill and powers in Clause 9 to modify the Withdrawal Bill  as well as limiting powers in Clause 7 so they cannot be used to impose or increase fees, establish a public authority or amend the devolution settlements.

Peers have accepted the new Government amendments to Clause 11- recommend reading this analysis on the issue by Jo Hunt and Hedydd Phylip from the Wales Governance Centre. During the last day of Report Stage, the Government alsoconceded to allow for Francovich damages to be sought in domestic law for two years after exit day- providing an opportunity for individuals to seek damages for pre-exit breaches of EU law. Peers also accepted an amendment by the Government which sets out that before a statutory instrument is laid, the relevant minister must make a statement on why there are good reasons for it and why a statutory instrument is a reasonable course of action. 

Peers vote to strengthen scrutiny of delegated legislation
During Committee Stage of the bill in the Commons, the Government agreed to set up a new committee to deal with which pieces of delegated legislation need detailed scrutiny as EU law is transferred to UK law. However, this new committee is only advisory, meaning that the Government does not have to follow through on its recommendations. This was pointed out by Crossbencher and previous parliamentary clerk, Lord Lisvane who said “as the Bill stands, the scrutinised are to choose the level of scrutiny to which they are subject. This cannot be right”. Peers voted in favour of Lord Lisvane’s amendment which does a better job of scrutinising regulations made under clauses 7,9 and 17 than the current Government proposal, by placing a requirement on the Government to accept Parliament’s recommended level of scrutiny and oblige ministers to explain why an SI is subject to the negative procedure. 

Unfinished business
While peers have gone to great lengths to improve the bill, there is still unfinished business. The question is at what stage or which bill will pick up concerns about various issues. Baroness Kennedy (Labour) introduced amendments during Report which would have precluded any changes to provisions in the 1971 Immigration Act  currently preventing passport control in the Common Travel Area (CTA). The question post-March 2019 is how to reconcile free movement when Ireland is no longer party to the same rules governing free movement. We’ve outlined concernsabout the potential for ‘non-routine’ routine controls that target perceived non-CTA (British/Irish) citizens on the basis of racial profiling. This has already been the case of Jules Gnezekora, who says he was singled out for checks while travelling from Belfast to Scotland. Lord Duncan, on behalf of the Government, has promised to write to Baroness O’Neill who raised this issue in the Lords last week. 

Baroness Kennedy also introduced a series of amendments during Committee, one of which sought to continue cooperation with the EU on tackling violence against women and girls, another amendment that would clarify what will happen to the EU funding that charities and organisations receive as well as continued cooperation with the EU to enforce cross-border child maintenance claims. The Government responded to these concerns by saying that although the Government is committed to cooperate with Europe on these issues, they are ultimately determined by the outcome of the negotiations. 

Lord Low of Dalston also withdrew his amendment (drafted by the Equality and Human Rights Commission) ensuring that delegated powers could not be used to reduce current protections in the Equality Acts of 2006 and 2010. While welcomed that the Government conceded to extend the requirement placed on ministers to make a statement on whether an SI under Clauses 7 and 9 modify any provisions of equalities legislation to Clause 17 as well, Lord Low expressed his disappointed that “the Minister has not really taken on board what is perhaps the main thrust of our amendments—to strengthen ministerial statements so as to more fully and effectively implement the Government’s commitment to maintain equality protections in the legislation”.

Malene Bratlie