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29 November 2017

27: Great Repeal Bill – A change would do you good

The House of Commons has completed three days of its eight-day consideration of the European Union (Withdrawal) Bill in a Committee of the Whole House. This post considers the modifications made to date, and looks at the subjects to be discussed when consideration continues next week.

What amendments have been made so far?

In debate so far, MPs have considered Clauses 1 to 6 and Schedule 1. By way of a reminder, these clauses:

  • repeal the ECA (clause 1).
  • maintain EU law as it applies in the UK at ‘exit date’ by:
    • preserving ‘EU-derived domestic legislation’ (eg UK regulations made under the ECA) (clause 2);
    • converting ‘direct EU legislation’ (eg EU Regulations) into domestic law (clause 3); and
    • converting into domestic law other EU rights and obligations (eg Treaty rights) (clause 4)

subject to the exceptions in Clause 5 (significantly, that the Charter of Fundamental Rights is not preserved, and EU law has no supremacy in respect of UK legislation passed on or after ‘exit day’) and Schedule 1;

  • clarify what ‘retained EU law’ is, and how it is to be treated, after exit day.

(Hyperlinks are to previous blog posts considering these matters.)

Around 65 proposed amendments and new clauses were tabled by MPs in respect of these clauses. Of those selected by the Chairman of Ways and Means for debate, a number were withdrawn after debate (ie not taken to a division). 13 were put to a vote. These were:

  • Amendment 79, proposed by Hywel Williams (Plaid Cymru), to make the repeal of the European Communities Act 1972 on exit day conditional on the Prime Minister gaining consent from the devolved legislatures;
  • New Clause 14, proposed by Chris Leslie (Labour), to require the SSExEU to lay a report before Parliament on how retained EU law is to be interpreted during any ‘transitional period’;
  • Amendment 137, proposed by Joanna Cherry (SNP), to require a court, when interpreting retained EU law, to ‘pay due regard to any relevant decision of the European Court’;
  • Amendment 278, proposed by Jeremy Corbyn (Labour), to stipulate that ‘exit day’ must not be before the end of any transitional period agreed under Article 50;
  • New Clause 25, proposed by Kerry McCarthy (Labour), to restrict the circumstances in which Ministers could use the Bill’s powers to modify retained EU law;
  • New Clause 58, proposed by Jeremy Corbyn (Labour), to prevent Ministers from using regulations under Acts other than the Bill to modify retained EU law in the areas of employment, equality, health and safety, consumer standards and environmental protection;
  • New Clause 30, proposed by Caroline Lucas (Green), to transpose into UK law the requirements of the EU Protocol on animal sentience;
  • New Clause 67, proposed by Jeremy Corbyn (Labour), to transpose into UK law environmental protections under article 191 of the TFEU (i.e. the precautionary, preventative action, ‘rectify at source’ and ‘polluter pays’ principles);
  • Amendment 70, proposed by Ian Blackford (SNP), to expressly set out on the face of the Bill the ‘rights, etc.’ transposed by article 4;
  • New Clause 79, proposed by Ellie Reeves (Labour), to require the Government to report to Parliament when EU law changes after Brexit;
  • Amendment 46, proposed by Jeremy Corbyn (Labour), to delete clause 5(4), which prevents the Charter of Fundamental Rights from being transposed into UK law;
  • Amendment 336, proposed by Jeremy Corbyn (Labour), to clarify when ‘general principles of EU law’ remain part of UK law; and
  • Amendment 139, proposed by Mary Creagh (Labour), to preserve the right to damages under Frankovich in respect of breaches occurring before exit day.

The Government has defeated all amendments so far with the help of the DUP. On certain divisions, it was also supported by Brexit-supporting Labour MPs Kate Hoey and Graham Stringer. Ken Clarke was the only Tory rebel. Labour MPs abstained on amendments proposed by the SNP and Plaid Cyrmu.

A rebellion by Tory backbenchers was prevented by the Government making concessions, in particular, in respect of the Charter of Fundamental Rights. The Solicitor General, Robert Buckland, said that the government was willing to work with Dominic Grieve MP to see how rights under the Charter of Fundamental Rights would be protected after Brexit, and that the Government would introduce its own amendment to this effect later in the bill’s passage. Grieve said this was sufficient reassurance for him and that he would not press for a vote on his amendments, but there is clearly potential for rebellions to materialise at Report stage if the government’s response is considered inadequate.

It is worth mentioning in this context that, as we commented here, the SSExEU, at Second Reading, explicitly stated that ‘the absence of the charter will not affect the substantive rights available in the UK’ and he has since committed to provide, by 5 December, a report, detailing how the individual rights protected by the Charter will be preserved elsewhere in UK law post-Brexit.

What is next for discussion?

Days 4 and 5 of Committee Stage will be held on 4 and 6 December. MPs will be considering Clauses 10, 11 and 13, and Schedules 2, 3 and 4, which concern devolution matters. This is likely to be one of the most heated and passionate debates, given the Scottish and Welsh governments’ opposition to the clauses as drafted.

In summary, as explained here and here, the devolution settlements currently require the devolved institutions (ie the Scottish Parliament, Welsh Assembly and NI Assembly, and the devolved executives) to comply with EU law; Westminster and the UK Government are similarly constrained by the UK’s membership of the EU. This means that where an EU regulation or directive requires implementation, Westminster, Holyrood, the Senedd and Stormont are all similarly constrained – the same framework applies.

Post-Brexit, however, the constraint on Westminster and the UK government will disappear. But clauses 10 and 11 of the Bill (as drafted) would prevent Scotland, Wales and Northern Ireland from creating rules inconsistent with the ‘retained EU law’ (whether by primary or secondary legislation), notwithstanding that they have responsibility for that policy area under their devolution settlements.

The UK Government considers this is necessary to give time to develop certain UK-wide policies to replace the existing EU frameworks (sometimes referred to as the creation of a UK Single Market). The devolved institutions (or, at least, the Scots and Welsh) argue this is inconsistent with the tenor of the devolution settlements, which transferred responsibility for devolved matters (eg agriculture, health) to them. That is why the first Ministers of Scotland and Wales reacted to the Bill by calling it:

‘a naked power-grab, an attack on the founding principles of devolution and could destabilise our economies.’

Modifications to the Bill to satisfy the devolved administrations are likely because the Government has accepted that, in accordance with the Sewel convention, the devolved legislatures will need to pass legislative consent motions giving approval to the Bill. The Sewel convention is not legally binding (the UK Parliament retains authority to legislate on any issue), but it places an obligation on the Government to make every effort to resolve the current impasse, notably because more hardline SNP MPs have suggested that, if Holyrood felt unable to grant legislative consent, it could trigger a second independence referendum.

‘I think a change, a change would do you good’ (Sheryl Crow, A Change Would Do You Good)
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