Brexit bill: What amendments have been passed?

This week the House of Lords and the House of Commons have been debating the European Union (Withdrawal) Bill. The bill has completed the stage of “ping pong” where it goes back and forth between the Commons and the Lords to resolve points of disagreement. Today, it’s going back to the Commons for what is likely to be the final consideration. You can read more about how bills go through Parliament here.

The Withdrawal Bill cuts off the source of European Union law in the UK by repealing the European Communities Act 1972. This means EU institutions can’t make laws affecting the UK any more, with the majority of existing EU law becoming domestic UK law. Prior to its publication it was known as the ‘Great Repeal Bill’.

Last week the Commons voted on 15 amendments that were passed in the House of Lords over the past few months.

In most instances the Government disagreed with the amendments, but in some cases has offered alternatives (called “amendments in lieu”) or agreed to the amendments. The Commons voted with the Government on every point.

This week the Lords has been debating the points of the bill where there is still disagreement with the Commons, and have sent back four final amendments. Three of these amendments are formalities, where the Lords has accepted the governments amendment but it needs to be sent back to the commons for “affirmative scrutiny”.

One Lords amendment will be subject to a Commons vote today, Amendment 19 on whether Parliament will get a “meaningful vote” on the final deal, which is explained in the section below. The amendment being debated today proposes that Parliament be allowed to amend a government motion on how to proceed with Brexit, should the government reject the final deal brought back from Brussels.

The three other amendments going back for final approval are: Enhanced scrutiny procedure (amendment 4), Rights of reunification of unaccompanied child refugees (amendment 24), and Scrutiny (amendment 110).

A version of the following article was originally published by the Institute for Government and has been republished here with kind permission.

15 amendments were proposed by the Lords and voted on by the Commons last week. They are listed below, including details of the Lords’ response this week, and of any action left for the Commons to take:

 

Customs Union (amendment 1, 2)  

Majority in House of Lords: 348-225.

What the amendment means: Would prevent the European Communities Act 1972 from being repealed until the Government has laid before Parliament a statement outlining the steps it has taken to negotiate the UK’s participation in a customs union with the EU. The amendment says this would need to happen by 31 October 2018.

What was the Government’s response?:

Amendment in lieu: Would prevent the European Communities Act from being repealed until Government has outlined what steps it has taken to negotiate an agreement for the UK to participate in a customs arrangement with the EU.

What did the Commons do?:

MPs rejected amendment 1 – 325-298.

MPs rejected amendment 2 – 326-296.

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.

How did the Lords respond?:

The Lords accepted the Government’s amendment.

 

Enhanced scrutiny procedure (amendment 4)      

Majority in House of Lords: 314-217.

What the amendment means: Would mean that secondary legislation used to amend certain retained EU law would be subject to an enhanced scrutiny procedure. This includes retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards.

What was the Government’s response?:

Disagree with the Lords amendment.

What did the Commons do?:

MPs rejected the amendment – 318-301.

How did the Lords respond?:

The Lords accepted the Government’s amendment which requires the affirmative scrutiny procedure, or an enhanced scrutiny procedure, to be used when amending retained EU law which originally implemented EU directives that were negotiated at the EU level. Previously these could only be modified within EU law.

The affirmative procedure means that statutory instruments would have to be actively approved by both Houses of Parliament.

The Commons needs to consider the Government’s amendment.

 

Charter of Fundamental Rights (amendment 5)   

Majority in House of Lords: 316–245.

What the amendment means: Would transfer the Charter of Fundamental Rights into domestic law, excluding the preamble and Chapter V of the Charter. Chapter V sets out the rights of citizens living in the EU (such as the right to stand as a candidate in European Parliament elections and freedom of movement) and would therefore not make sense if contained in domestic law.

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

 MPs rejected the amendment – 321-301.

How did the Lords respond?

The Lords accepted the Commons’ decision.

Challenges to retained EU law (amendment 52)

Majority in House of Lords: 285–235.

What the amendment means: Removes the section of the bill which allowed ministers to use secondary legislation to establish when individuals can challenge the validity of retained EU law after exit day.

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

MPs rejected the amendment – 326-301.

 How did the Lords respond?:

The Lords accepted the Commons’ decision.

 

Challenges to retained EU law (amendment 53)

Majority in House of Lords: 280–223.

What the amendment means: Would allow legal challenges to domestic law if it fails to comply with the general principles of EU law. This reflects 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.

What was the Government’s response?:

Amendment in lieu: allow legal challenges on this basis for three years after exit day.

What did the Commons do?:

MPs rejected the amendment – 320-297.

The Commons accepted the Government’s amendment in lieu to allow legal challenges on this basis for three years after exit day.

How did the Lords respond?:

The Lords accepted the Government’s amendment in lieu.

 

Scope of delegated powers (amendment 10, 43, 45)

Majority in House of Lords: 349–221.

What the amendment means: Amends clause 7—which gives ministers powers to amend retained EU law using delegated legislation—so that ministers can only use these powers where “necessary” rather than where they think it is “appropriate”.  After this was voted part of the bill, changes to delegated powers in clause 9 and 17 were accepted.

What was the Government’s response?:

Disagree with the amendment.

What did the Commons do?:

MPs rejected amendment 10 – 320-305.

MPs rejected amendment 43 – 322-306.

MPs rejected amendment 45 – 317-306.

How did the Lords respond?

The Lords accepted the Commons’ decision.

'Meaningful vote' (amendment 19)

Majority in House of Lords: 335–244.

What the amendment means: A new clause which says 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 sets out specific deadlines for the Government for agreeing—and legislating for—the withdrawal agreement with the EU. If the Government does not meet those deadlines, the amendment says that it "must follow any direction" approved by a resolution in the House of Commons and considered in the House of Lords. This gives the Commons—not the Lords—the power to decide the next steps for the Government.

What was the Government’s response?:

The Commons amendment on the “meaningful vote” simply said Government could not implement the withdrawal agreement before Parliament had approved the final terms of the deal. The Government has offered an amendment in lieu of the Lords amendment, offering to detail how Parliament will have that “meaningful vote” on the deal. And it says if Parliament does not approve the deal, a minister will make a statement setting out how the Government “proposes to proceed” within 28 days.

What did the Commons do?:

The Commons rejected the Lords’ amendment 324-298 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 Government agreed to discuss with backbenchers how to make its amendment more robust. In particular, the Government agreed to look at an amendment tabled by Dominic Grieve which would require 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.

How did the Lords respond?:

The Lords accepted the Government’s amendment in lieu. They then voted 354-235 in favour of an amendment Viscount Hailsham tabled on behalf of Dominic Grieve.

This was an amendment which reflected the agreement Conservative backbenchers thought they had reached with the Government. It says that, if Parliament rejects the deal brought back from Brussels, then the Commons will vote on a motion to approve a statement made by a minister setting out what the Government plans to do next. If no deal is reached with the EU by 21 January 2019, then a minister must make a statement setting out how the Government plans to proceed and the Commons must approve this statement in a motion.

Crucially, compared to what the Government tabled last week, these motions would – in theory – be amendable.

The Commons needs to consider Viscount Hailsham’s (Dominic Grieve’s) amendment.

 

Parliamentary approval of mandate for future negotiations (amendment 20)

Majority in House of Lords: 270–233.

What the amendment means: Would prevent secondary legislation to implement the withdrawal agreement (clause 9) from being used until after Parliament has approved a mandate for negotiations about the UK’s future relationship with the EU.

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

MPs rejected amendment 20 – 321-305.

How did the Lords respond?:

The Lords accepted the Commons’ decision.

 

Rights of reunification of unaccompanied child refugees (amendment 24)

Majority in House of Lords: 205–181.

What the amendment means: A new clause on the ability of unaccompanied child refugees in one EU member state to join relatives in another. The new clause requires the Government to try and negotiate to maintain this arrangement.

What was the Government’s response?:

Amendment in lieu: 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).

What did the Commons do?:

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).

How did the Lords respond?:

The Lords’ accepted the Government’s amendment from the Commons, as well as an additional government amendment to remove the section in the clause which says this only applies to children who are not in the care of someone who is “aged 18 or over”.

The Commons needs to consider the Government’s amendment.

 

Northern Ireland (amendment 25)

Majority in House of Lords: 309–242.

What the amendment means: A new clause which explicitly preserves North-South co-operation after Brexit and prevents the establishment of new border arrangements which did not exist before exit day, unless agreed between the UK Government and the Government of Ireland.

What was the Government’s response?:

Amendment in lieu: amends 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 reduces 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.

What did the Commons do?:

MPs accepted the Government’s amendment in lieu. This amends 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 reduces 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.

How did the Lords respond?:

The Lords accepted the Government’s amendment in lieu.

 

Continuing relationship with the EU (amendment 32)

Majority in House of Lords: 298–227.

What the amendment means: Would ensure that the act will not prevent the UK from replicating EU law made after exit day in UK law and from continuing to participate in EU agencies after exit day.

What was the Government’s response?:

Agree with the amendment

What did the Commons do?:

The Commons agreed to this amendment without a vote.

 

Date and time of exit (amendment 37, 39, 125)

Majority in House of Lords: 311–233.

What the amendment means: The Government amended the bill during the Commons committee stage to include these details in the bill but the Lords voted to revert to the original wording. The Duke of Wellington said they wanted to give the Commons a chance to think again.

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

MPs rejected amendment 37 – 326-301.

MPs rejected amendment 39 – 324-302.

MPs rejected amendment 125 – 328-297.

How did the Lords respond?:

The Lords accepted the Commons’ decision.

 

European Economic Area (EEA) (amendment 51)

Majority in House of Lords: 245–218.

What the amendment means: Would force the Government to make remaining in the European Economic Area a negotiating objective. Lord Alli said this was to give the Commons the opportunity to make the decision on whether the UK should remain part of the EEA.

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

MPs rejected amendment 51 – 327-126.

Three Conservative MPs voted in favour of the amendment (Ken Clarke, Dominic Grieve and Anna Soubry), and 74 Labour MPs defied their own whip to abstain from the vote. Labour’s amendment referring to ‘access to the internal market’ was also rejected amendment – 322-240.

How did the Lords respond?:

The Lords accepted the Commons’ decision.

 

Scrutiny (amendment 110)

Majority in House of Lords: 225–194.

What the amendment means: The purpose of the sifting committee is to ‘sift’ how statutory instruments used to amend retained EU law should be scrutinised by Parliament. Lord Lisvane’s amendment would make the committee oversee all statutory instruments (giving it a wider scope) and give it the power to ‘require’ greater scrutiny for statutory instruments, rather than just ‘recommend’ there needs to be greater scrutiny (as is currently drafted).

What was the Government’s response?:

Disagree with the amendment

What did the Commons do?:

MPs rejected amendment 110 – 324-302.

MPs rejected amendment 128 – 325-304.

How did the Lords respond?:

The Lords accepted the Government’s amendment which would require ministers to make a written statement if they disagree with the scrutiny procedure for a statutory instrument the committee has recommended.

 The Commons needs to consider the Government’s amendment.

 

Environmental principles (amendment 3)

Majority in House of Lords: 294–244.

What the amendment means: Would 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. Defra has launched a consultation on a new Environmental Principles and Governance Bill but peers did not believe this was sufficient. The amendment lists the exact principles which need to be given effect in domestic law.

What was the Government’s response?:

Accept Oliver Letwin’s amendment in lieu: sets out the same list of principles which should be included in a new environment bill. 

What did the Commons do?:

MPs rejected the amendment – 320-296.

The Commons 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.

How did the Lords respond?:

The Lords accepted the Commons’ amendment in lieu.