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European Union (Withdrawal) Bill: Report stage Briefing - UPDATED

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European Union (Withdrawal) Bill: Report stage 

  • Next steps for the Bill in the Lords – and beyond 
  • Labour Lords frontbench approach – including cross-party amendments 
  • Updated quotes from Baroness Smith of Basildon & Baroness Dianne Hayter

 

Next steps for the Bill in the Lords – and beyond

  • Report stage – 6 days on the floor of the House: Weds 18th, Mon 23rd, Weds 25th & Mon 30th April; Weds 2nd & Tues 8th The initial tranche of amendments will soon be available at the Bill’s homepage on the Parliament website.
  • In recent years, Lords Report has become the stage when most votes take place at this end of Parliament. Divisions are not scheduled in the same way as the Commons, with votes following amendment debates. Most key divisions occur between 4pm and 7.30pm.
  • Third Reading has been confirmed for 16th May. Votes are possible but would be primarily informed by how Report debates play out, e.g. if Ministers fail to deliver on a previously indicated concession, rather than whether the Bill moves back to the Commons.
  • Commons consideration of Lords amendments, whether government concessions, minor technical changes or voted defeats, is likely to happen soon after Lords Third Reading – with potential, of course, for parliamentary ping-pong.

Notes:

Original version produced and circulated Thursday 29th March

Updated version produced and circulated Thursday 19th April

Additions to this version:

  • confirmation of Third Reading debate
  • minor changes to amendment sponsors (sections 2 & 3)
  • details of cross-party amendment on parliamentary approval (section 4)
  • updated quotes from Baroness Smith and Baroness Hayter

Version also removes cross-party amendment on delegated powers and public authorities from the original section 2

Labour Lords frontbench approach – cross-party amendments

Following the many probing amendments that were tabled at Committee stage of the Bill, our focus for Report stage will include the following priorities:

  • Customs Union
  • Limiting the scope of delegated (Henry VIII) powers
  • Enhanced protections certain areas of EU legislation
  • A meaningful role for Parliament at the end of the negotiations
  • Northern Ireland
  • Removing the Government’s fixed exit day
  • Transitional arrangements
  • Facilitating future UK cooperation in EU agencies/adoptions of EU laws

‘Customs Union’:

  • Labour recently announced backing for a form of UK-EU customs union after Brexit. Such arrangements will not only be important for British business, but also help facilitate the continuation of current border arrangements in Northern Ireland.
  • We seek to make the repeal of the 1972 European Communities Act conditional on a Minister laying a report before Parliament that outlines the steps taken to negotiate a customs union as part of the framework for a future UK-EU relationship. 

Amendments:

L Kerr of Kinlochard XB, L Patten of Barnes CON, Bns Hayter of Kentish Town LAB, Bns Ludford LD

Clause 1, page 1, line 2, at end insert—

“(1) Subsection (2) applies if, and only if, the condition in subsection (3) is met.

Clause 1, page 1, line 3, at end insert—

“(3) The condition in this subsection is that, by 31 October 2018, a Minister of the Crown has laid before both Houses of Parliament a statement outlining the steps taken in negotiations under Article 50(2) of the Treaty on European Union to negotiate, as part of the framework for the United Kingdom’s future relationship with the European Union, an arrangement which enables the United Kingdom to continue participating in a customs union with the European Union.” 

‘Limiting the scope of delegated (Henry VIII) powers’:

  • Throughout the passage of the Bill, concern has been expressed it represents a challenge for the relationship between Parliament and the Executive, giving the latter excessive law-making powers.
  • We seek changes therefore, to prevent Ministers from making regulations where they deem it ‘appropriate’ rather than when it is ‘necessary’ to achieve the aim of a functioning statute book on exit day. We also seek to remove the ability of Ministers to establish public authorities, create new criminal offences, levy taxes or impose fees and charges, and even amend the Bill itself by statutory instrument.
  • The government has also given itself the power to make any consequential or transitional provisions following Brexit, with some of these regulations not subject to any form of parliamentary scrutiny. We seek therefore, to restrict such powers.

5 x amendments:

Restricting the scope/ensuring appropriate scrutiny of delegated powers

L Lisvane XB, L Tyler LD, L Goldsmith LAB, L Cormack CON

Clause 7, page 5, line 3, leave out “the Minister considers appropriate” and insert “is necessary”

Clause 8, page 6, line 34, leave out “the Minister considers appropriate” and insert “is necessary”

Clause 17, page 14, line 14, leave out “the Minister considers appropriate” and insert “is necessary”

Clause 17, page 14, line 22, leave out “the Minister considers appropriate” and insert “is necessary”

Schedule 8, page 64, line 33, leave out from first “time” to end of line 34 

Removal of the ability to create criminal offences by statutory instrument

L Judge XB, Bns Hayter of Kentish Town LAB, L McNally LD, V Hailsham CON

Clause 7, page 6, line 17, leave out “relevant”

Clause 8, page 6, line 42, leave out “relevant”

Clause 9, page 7, line 15, leave out “relevant”

Clause 14, page 11, leave out lines 8 to 12

Preventing delegated powers from imposing taxation or modifying existing fees/charges

L Kerr of Kinlochard XB, L Higgins CON, Bns Hayter of Kentish Town LAB, Bns Kramer LD

Clause 8, page 6, line 40, at end insert—

“( ) impose or increase taxation,”

Schedule 4, page 35, line 28, at end insert—

“( ) Regulations under this paragraph may not impose or increase taxation.”

Schedule 7, page 48, line 2, leave out from “authority” to “, or” in line 4

Removal of the ability to amend the Act itself

L Lisvane XB, Bns Hayter of Kentish Town LAB, Bns Smith of Newnham LD, Bns Wheatcroft CON

Clause 9, page 7, line 11, leave out “(including modifying this Act)”

Removal of Clause 17 and other powers relating to transitional provision

L Hannay of Chiswick XB, L Beith LD, L Goldsmith LAB, Bns Altmann CON

Clause 17, page 14, leave out subsections (1) to (3)

Clause 19, page 15, leave out paragraph (d)

Schedule 7, page 48, leave out lines 25 to 27

Schedule 7, page 48, leave out paragraph 12 and insert—

Power to make transitional, transitory or saving provision

12        A statutory instrument containing regulations under section 17(5) is subject to annulment in pursuance of a resolution of either House of Parliament.”

Schedule 7, page 51, leave out sub-paragraphs (1) and (2)

Schedule 7, page 51, leave out sub-paragraph (4)

Schedule 7, page 51, line 40, leave out “or (4)”

Schedule 7, page 52, leave out paragraph 20

‘Enhanced protection for certain areas of EU legislation’: 

  • Labour supports giving continuing legal effect to directly applicable EU law once the European Communities Act 1972 has been repealed. The government however, has not provided for enhanced protection for EU-derived rights for workers, consumers or the environment. Key protections brought over by the Bill could therefore, be amended or revoked by statutory instrument, with Parliament having a limited scrutiny role.
  • The Commons rejected Labour’s calls for such rights to be given an enhanced level of protection in UK law, although the government’s majority was reduced to just 12. We seek to pass similar amendments and give MPs the opportunity to reconsider how these core rights can be protected.
  • We will also seek to ensure that the Charter of Fundamental Rights continues to have effect; and that domestic courts have the guidance they need in relation to the European Court of Justice, whilst ensuring that power remains in the hands of British judges.

3 amendments:

Enhanced protection for certain areas of EU law

Bns Hayter of Kentish Town LAB, L Warner XB, Bns Smith of Newnham LD, L Kirkhope CON

After Clause 3, insert the following new Clause—

“Enhanced protection for certain areas of EU law

(1) Following the day on which this Act is passed, a Minister of the Crown may not amend, repeal or revoke retained EU law relating to—

(a) employment entitlements, rights and protection,

(b) equality entitlements, rights and protection,

(c) health and safety entitlements, rights and protection,

(d) consumer standards, or

(e) environmental standards and protection

except by primary legislation, or by subordinate legislation made under any Act of Parliament insofar as this subordinate legislation meets the requirements in subsections (2) to (5).

(2) Subordinate legislation which amends, repeals or revokes retained EU law in the areas set out in subsection (1) must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State.

(3) Regulations under subsection (2) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.

(4) The enhanced scrutiny procedure provided for by subsection (2) must include a period of consultation with relevant stakeholders.

(5) When making regulations relating to the areas of retained EU law set out in subsection (1), whether under this Act or any other Act of Parliament, a Minister of the Crown must—

(a) produce an explanatory statement under Paragraph 22 of Schedule 7, and

(b) include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit.”

Charter of Fundamental Rights

L Pannick XB, L Goldsmith LAB, Bns Ludford LD, L Deben CON

Clause 5, page 3, line 20, leave out subsections (4) and (5) and insert—

“( ) The following provisions of the Charter of Fundamental Rights are not part of domestic law on or after exit day—

(a) the Preamble, and

(b) Chapter V.”

Guidance for courts and tribunals

L Pannick XB, L Goldsmith LAB, L Wallace of LD, V Hailsham CON

Clause 6, page 3, line 34, leave out subsection (2) and insert—

“(2) A court or tribunal may have regard to anything done on or after exit day by the European Court, another EU entity or the EU where it considers it relevant for the proper interpretation of retained EU law.”

‘A meaningful role for Parliament at the end of the negotiations’:

  • While welcoming the addition of Dominic Grieve MP’s Commons amendment to Clause 9 (making the use of powers in that Clause conditional on the passing of a statute on the terms of the withdrawal agreement), the Bill still doesn’t go far enough in giving Parliament a meaningful role in agreeing the outcomes of the negotiations.
  • We seek to enhance the Grieve amendment, which formalises the government’s commitment to a vote on the draft agreement before the corresponding vote in the European Parliament. Our amendment both gives the UK Parliament a vote before the government can walk away with ‘No Deal’ and allows the Commons to decide what course of action the government should take – in the event of Parliament rejecting the draft withdrawal agreement, the promised additional statute, or the ‘No Deal’ scenario.
  • We will also support a cross-party amendment led by Lord Monks that calls on Ministers to seek parliamentary approval for their phase 2 negotiating mandate. This is similar to the process that exists at the EU level, where leaders of the EU27 approve the mandate of Michel Barnier’s negotiating team.

2 amendments:

V Hailsham CON, L Hannay of Chiswick XB, Bns Hayter of Kentish Town LAB, Lord Wallace of Saltaire LD

After Clause 9, insert the following new Clause—

Parliamentary approval of the outcome of negotiations with the European Union

(1) Without prejudice to any other statutory provision relating to the withdrawal agreement, Her Majesty’s Government may conclude such an agreement only if a draft has been—

(a) approved by a resolution of the House of Commons, and

(b) subject to the consideration of a motion in the House of Lords.

(2) So far as practicable, a Minister of the Crown must make arrangements for the resolution provided for in subsection (1)(a) to be debated and voted on before the European Parliament has debated and voted on the draft withdrawal agreement.

(3) Her Majesty’s Government may implement a withdrawal agreement only if Parliament has approved the withdrawal agreement and any transitional measures agreed within or alongside it by an Act of Parliament.

(4) Subsection (5) applies in each case that any of the conditions in subsections (6) to (8) are met.

(5) Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been—

(a) approved by a resolution of the House of Commons, and

(b) subject to the consideration of a motion in the House of Lords.

(6) The condition in this subsection is that the House of Commons has not approved the resolution required under subsection (1)(a) by 30 November 2018.

(7) The condition in this subsection is that the Act of Parliament required under subsection (3) has not received Royal Assent by 31 January 2019.

(8) The condition in this subsection is that no withdrawal agreement has been reached between the United Kingdom and the European Union by 28 February 2019.

(9) In this section—

“withdrawal agreement” means an agreement (whether or not ratified) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU and the framework for the United Kingdom’s future relationship with the European Union.”

L Monks LAB, Bns Wheatcroft CON, L Campbell of Pittenweem LD, L Lea of Crondall LAB

Clause 9, Page 7, line 7, after “to” insert—

“(a) approval by both Houses of Parliament of a mandate for negotiations about the United Kingdom’s future relationship with the EU and

(b)”

‘Northern Ireland’:

  • Throughout the passage of the Bill, there has been much discussion about the impact of Brexit on Northern Ireland, not least in relation to North-South cooperation and arrangements at the border. We understand the complexity of this question and remain committed to upholding well established political agreements on the island of Ireland.
  • We seek therefore, to require Ministers and the devolved authorities to act in a way that is compatible with the 1998 Northern Ireland Act; and to have due regard to the contents of the December 2017 UK-EU Joint Report, including the mutual recognition of the Belfast principles and current provisions on equalities and human rights.
  • The amendment would also prevent regulations made under Clauses 7, 8, 9 or 17 of this Bill from diminishing any form of North-South cooperation or introducing new border arrangements, unless these were subject to an agreement between the UK and Irish governments. 

Amendment: 

L Patten of Barnes CON, L Murphy of Torfaen LAB, Bns O’Neill of Bengarve XB, Bns Suttie LD

Before Clause 10, insert the following new Clause—

Continuation of North-South cooperation and the prevention of new border arrangements

(1) In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must—

(a) act in a way that is compatible with the terms of the Northern Ireland Act 1998, and

(b) have due regard to the joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union.

(2) Nothing in sections 7, 8, 9 or 17 of this Act authorises regulations which—

(a) diminish any form of North-South cooperation across the full range of political, economic, security, societal, and agricultural contexts and frameworks of cooperation, including the continued operation of the North-South implementation bodies, or

(b) create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature—

(i) physical infrastructure, including border posts,

(ii) a requirement for customs or regulatory compliance checks,

(iii) a requirement for security checks,

(iv) random checks on goods vehicles, or

(v) any other checks and controls

that did not exist before exit day and are not subject to an agreement between Her Majesty’s Government and the Government of Ireland.”

‘Removing the Government’s fixed exit day’:

  • During Commons Committee stage, the government passed amendments to define ‘exit day’ throughout the Bill as ‘11pm on 29 March 2019’. This addition undermines a transitional period and would also make it illegal for the UK to extend the Article 50 negotiations by even a single minute – even if the EU27 unanimously agreed to do so. On a practical level, it denies the government any flexibility in the negotiations.
  • We seek to reinstate the exit day provisions that were in the original version of the Bill, and to make it clear (in Schedule 7) that regulations appointing exit day are subject to the affirmative procedure.

Amendment:

D Wellington CON, L Hannay of Chiswick XB, Bns Hayter of Kentish Town LAB, L Newby LD

Clause 14, page 10, line 40, leave out from “means” to the end of line 41 and insert “such day as a Minister of the Crown may by regulations appoint (and see subsection (2A));”

Clause 14, page 11, line 38, leave out subsections (2) to (5) and insert—

“(2) In this Act—

(a) where a Minister of the Crown appoints a time as well as a day as exit day (see paragraph 19 of Schedule 7), references to before, after or on that day, or to beginning with that day, are accordingly to be read as references to before, after or at that time on that day or (as the case may be) to beginning with that time on that day, and

(b) where a Minister of the Crown does not appoint a time as well as a day as exit day, the reference to exit day in section 1 is to be read as a reference to the beginning of that day.”

Schedule 7, page 48, line 21, leave out paragraph 10 and insert—

Power to appoint “exit day”

10        A statutory instrument containing regulations under section 14 which appoint a day as exit day may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

‘Transitional arrangements’:

  • Labour has consistently called for a time-limited transitional period based on current terms (i.e. within the Single Market and Customs Union), beyond the end of the Article 50 negotiations. While the government’s ‘in principle’ agreement with the EU would allow for European Court of Justice (ECJ) involvement during the transition, this Bill specifically precludes that.
  • We seek therefore, to remove the automatic exclusion of the ECJ until the end of any transitional period.

Amendment:

Jurisdiction of the Court of Justice of the EU

L Goldsmith LAB, L Kerslake XB, V Hailsham CON, L Wallace of Tankerness LD

Clause 19, page 15, line 21, at end insert—

“( ) A Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and European Union. 

‘Facilitating future UK cooperation in EU agencies/adoptions of EU laws’: 

  • The Prime Minister, in her recent Mansion House speech, acknowledged there may be cases where “Parliament passes an identical law to an EU law” and confirmed the government will explore “the terms on which the UK could remain part of EU agencies”.
  • We seek to help formalise the PM’s stated position, making it clear that nothing in the Bill prevents the replication of future EU law in domestic law or the continued participation of the UK in EU agencies.

Amendment:

Facilitating future UK cooperation in EU agencies/adoption of EU laws

Bishop of Leeds BP, L Goldsmith LAB, Bns McIntosh of Pickering CON, Bns Randerson LD

Before Clause 14, insert the following new Clause—

Future interaction with the law and agencies of the EU

(1) Nothing in this Act shall prevent the United Kingdom from—

(a) replicating in domestic law any EU law made on or after exit day, or

(b) continuing to participate in, or have a formal relationship with, the agencies of the European Union after exit day.

Updated Quotes:

Shadow Leader of the Lords, Baroness (Angela) Smith of Basildon said:

“This Bill remains an opportunity for the government to take a pragmatic view of how best to protect the rights of UK citizens rather than be distracted by the ideological pursuits of backbench MPs.

“As Report stage continues, Theresa May and her ministers should take the opportunity to bring forward sensible changes in response to concerns raised by all sides in the Lords. As the first day of Report illustrated, we won’t be shy about giving MPs a further chance to scrutinise the detail of the Bill.”

Shadow Brexit Minister, Baroness (Dianne) Hayter said:

“Given the lack of movement from the government to improve this Bill, we will press for further changes to ensure power sits with Parliament not Ministers over the exit deal, tax raising powers and the creation of criminal offences. We will also seek to retain the Charter of Fundamental Rights, and ensure no hard border in Northern Ireland.”

-Ends-

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