48: Great Repeal Bill – She said ‘you don’t understand what I said’, I said ‘no no no you’re wrong’

The EU (Withdrawal) Bill returned to the Commons this week, to allow MPs to review the substantial amendments made to the Bill in the Lords. As discussed here, here and here, the Government lost 15 votes in the Lords, but also made significant amendments to the Bill of its own (particularly in respect of devolution).

In the Commons, the Government:

• accepted the Lord Bishop of Leeds’ amendment, which provided that the Bill did not prevent the UK, after exit day, from replicating EU law made after exit day in UK law or from continuing to participate in EU agencies;
• had all of its own amendments in the Lords accepted (including those on devolution);
• proposed certain amendments in lieu of the Lords’ amendments (discussed further below); and
• won all the votes on the remainder of the Lords amendments (so these have now been overturned).

On the votes, the Government generally had a majority of about 25. The exception was the vote on Lord Alli’s amendment to stay in the EEA. On that vote, the Government’s majority was much larger, because Labour abstained. Labour’s alternative frontbench amendment, that a negotiating objective should be ‘to ensure the United Kingdom has full access to the internal market of the European Union’, was defeated.

‘In lieu of’ amendments

The Government proposed six amendments in lieu of those proposed by the Lords.

The first was on future customs arrangements, in lieu of Lord Kerr’s amendment, which prevented the ECA 1972 from being repealed until the Government laid before Parliament (by 31 October 2018) a statement outlining the steps it had taken to negotiate the UK’s participation in a customs union with the EU. The Commons accepted the Government’s amendment in lieu which would require the Government to lay a statement before Parliament, before October 2018, outlining the steps taken to negotiate an agreement for the UK to participate in a customs arrangement with the EU.

Second, the Lords had amended the Bill to allow legal challenges to domestic law if it failed to comply with the general principles of EU law. This reflected the fact that the Bill currently transfers general principles of EU law into domestic law as long as they are recognised by the European Court of Justice (ECJ) before exit day. The Commons accepted the Government’s amendment in lieu to allow legal challenges on this basis, but only for three years after exit day.

Third, the Lords had added a new clause (Lord Dubs’ amendment) to require the Government to try to negotiate to maintain the ability of unaccompanied child refugees in one EU member state to join relatives in another. The House accepted the Government’s amendment in lieu which sets out the Government’s intention to negotiate an agreement with the EU to allow an unaccompanied child to join a relative in the UK who is a lawful resident (and vice versa).

Fourth, the Lords had added a new clause to the Bill (Lord Patten’s amendment) which explicitly preserved North-South co-operation after Brexit and prevented the establishment of new border arrangements which did not exist before exit day, unless agreed between the UK Government and the Government of Ireland. MPs accepted the Government’s amendment in lieu which amended the Lords’ clause to refer to the North-South co-operation in the Belfast Agreement (rather than list the specific areas of co-operation) and to reduce the list of new border arrangements to include ‘physical infrastructure, including border posts, or checks and controls’. It also says this should be subject to an agreement between the UK and the EU rather than the UK and Ireland. Some MPs later claimed this was the most significant change to the Bill at this stage, because of the implications for future UK/EU customs and border arrangements and the prospect of ‘no deal’.

Fifth, the Lords had added a clause to require the Secretary of State for Environment, Food and Rural Affairs to take steps to maintain the EU’s environmental principles in domestic law after Brexit. The Commons rejected Lord Krebs amendment, but accepted Oliver Letwin’s amendment in lieu (which was supported by the Government) which sets out the same list of principles which should be included in a new environment bill.

Most news coverage has been dominated by the sixth ‘in lieu’ amendment, concerning a ‘meaningful vote’ on the Brexit deal.

The Lords had proposed a new clause which said that Parliament must approve the withdrawal agreement and transitional measures in an Act of Parliament and, if possible, before the European Parliament has debated and voted on this. The clause also set out specific deadlines for the Government for agreeing, and legislating for, the withdrawal agreement with the EU. If the Government did not meet those deadlines, the amendment said that it ‘must follow any direction’ approved by a resolution in the House of Commons and considered in the House of Lords. This gave the Commons the power to decide the next steps for the Government.

The Commons rejected the Lords’ amendment and accepted the Government’s amendment in lieu which set out how Parliament will approve the Withdrawal Agreement and that, if it does not approve, a minister will make a statement setting out how the Government ‘proposes to proceed’ within 28 days.

However, during the debate, backbench Conservative MPs put pressure on the Government to make concessions: the Solicitor General, on behalf of the Government, agreed to discuss with backbenchers how to make its amendment more robust (and to introduce a new version in the Lords on 18 June). In particular, the Government agreed to look at (but not necessarily to follow) the amendment tabled by former Attorney General Dominic Grieve (who of course led the rebellion in the Commons on the same issue) which would have required it to seek approval in the Commons for the steps it will take if the House rejects the Withdrawal Agreement or if no agreement is reached with the EU by 30 November 2018. Backbenchers eventually backed down after personal assurances were given by the Prime Minister about the Government’s proposed approach to the new amendment.

However, when the Government’s first draft of the revised amendment was published, backbenchers claimed it was inconsistent with the earlier draft which they had approved and (potentially crucially) with the assurances given by the Prime Minister herself. The fundamental difference was whether the ‘meaningful vote’ resolution itself should be amendable, or ‘take it or leave it’. Debate will continue into next week on the precise form, with accusations being made on both sides of the Tory party about what exactly she said…

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‘She said you don’t understand what I said, I said no no no you’re wrong’ (The Beatles, She said)