45: Great Repeal Bill – If 6 turned out to be 9
The Lords have completed three days of Report stage on the EU (Withdrawal) Bill and, so far, the Government has been defeated on six votes, and it is likely that more defeats may follow.
Six Government defeats
On Day 1, the Government lost two votes on:
- amendments 1 and 4 tabled by Lord Kerr, a crossbench peer (and author of Article 50), to prevent the European Communities Act 1972 being repealed until the Government laid before Parliament a statement outlining the steps it has taken ‘to negotiate a customs union as part of the framework for a future UK-EU relationship’, and requiring this statement to be laid by 31 October 2018;
- new Clause 11 tabled by Baroness Hayter, Shadow Deputy Leader of the House of Lords (and so a Labour peer), to prevent ‘retained EU law’ relating to rights in the fields of employment, equality, health and safety, consumer standards and environmental standards from being amended or revoked post-Brexit save by primary legislation (or secondary legislation subject to an enhanced scrutiny procedure).
On Day 2, the Government lost votes on three amendments, each tabled by Lord Pannick, which sought to preserve existing rights post-Brexit:
- amendment 15, to change clause 5 to transfer the European Charter of Fundamental Rights into domestic law (save for the preamble and Chapter V of the Charter, which sets out the rights of citizens living in the EU, eg the right to stand as a candidate in European Parliament elections and freedom of movement, which would not make sense if contained in domestic law). We consider this amendment further below;
- amendment 18, to change Schedule 1, para 1(3) to remove ministers’ ability to specify by regulations when individuals may bring challenges against the validity of retained EU law post-Brexit; and
- amendment 19, to change Schedule 1, para 3 to retain a right of action in domestic law post-Brexit if there is a failure to comply with the general principles of EU law (such principles having been retained in UK law by the Bill).
On Day 3, the Government lost a further vote on Amendment 31, tabled by Crossbencher Lord Lisvane (former Clerk to the House of Commons), to raise the threshold for the use of ‘correcting powers’ in the Bill under clause 7(1) (including Henry VIII powers) from whenever ‘the Minister considers appropriate’ to when it ‘is necessary’. However, the Government won a vote on Amendment 40 which would have made ministers pay due regard to the welfare requirements of animals as sentient beings.
Keeping the Charter
The Bill’s non-transposition of the Charter was always been something of an anomaly, given the stated purpose of the Bill is to transfer existing EU law in its entirety into UK law (in order to prepare the UK for Brexit). And MPs and peers have, throughout the Bill’s passage, been concerned about the dilution or loss of existing rights which the non-transposition of the Charter represents – notwithstanding the Government’s position that no rights will be lost because everything protected by the Charter is protected elsewhere in UK law. The devolved administrations are equally concerned – their ‘continuity Bills’ would both retain the Charter.
But the Government’s position also has a certain logic, because simply transposing the Charter into UK law would inevitably diminish its status – it would become normal domestic legislation, which could be superseded or overruled by any subsequent Act of Parliament – and the UK courts (unlike the ECJ) would have no power to hold subsequent legislation unlawful because it breached the Charter.
For the effect of the Charter to be truly transposed into UK law, the Charter would need to have some form of protection from amendment (akin to a Bill of Rights) and provide a means of enforcing its rights through the domestic courts (without the involvement of a super-national court like the ECJ). Both elements would not only go beyond the stated purpose of the Bill but, more importantly, would involve a greater degree of ‘constitutional shake up’ than the Government is willing to countenance.
When the Bill returns to the Commons, we suspect the Government will seek to reverse Amendment 15, arguing that no substantive rights are lost through the Charter’s non-transposition and emphasising that, post-Brexit, Parliament will be truly sovereign to legislate for ‘rights’ as it sees fit.
Peers also accepted a number of amendments to the Bill proposed by the Government:
- amendment 23, which modifies clause 6 (interpretation of retained EU law) to give greater guidance to UK courts as to when they should refer to ECJ judgements made after exit day: the word ‘appropriate’ – criticised as requiring the courts to make a policy decision – has been replaced with ‘relevant’;
- amendment 26, to insert a new clause after clause 6 to clarify the status of retained EU law after exit day, and how this category of law should be amended after exit day, outside of the powers given to ministers under the Bill. Lord Callanan (the Minister of State at DExEU and responsible for the Bill in the Lords) acknowledged that the new clause was detailed, and that the Government ‘would be prepared to return to the issue at Third Reading’ to give the Lords time to consider it;
- amendments 32A, 33A, 34A, 34B, 34C and 34D, to prevent the ‘correcting power’ under clause 7 being used to establish new public authorities, impose or increase fees, repeal the Scotland Act 1998, Government of Wales Act 2006 or parts of the Northern Ireland Act 1998; and
- amendment 47A, to remove clause 8 (complying with international obligations) entirely. Clause 8 would have given ministers the power to amend UK law to ensure the UK did not breach its international obligations after it leaves the EU. The Government now considers this power is unnecessary, as changes will be made through primary legislation or under other delegated powers where possible.
Three further days for deliberation at Report Stage are allocated for 30 April and 2 and 8 May. We anticipate further defeats for the Government, notably on Amendment 49, which seeks to ensure Parliament’s approval of the withdrawal agreement. Six may turn out be nine, or maybe even more…
Enjoying the blog? Why not try the Great Repeal Bill Blog playlist on Spotify.
‘If 6 turned out to be 9…’ (Jimi Hendrix, If 6 was 9)
Written with Aaron Nelson