UK: Great Repeal Bill – We've Only Just Begun

Last Updated: 21 September 2017
Article by David Mundy and Aaron Nelson

Earlier this week, following two days of debate (on 7 and 11 September), the House of Commons voted in favour of the Government's motion that the EU (Withdrawal) Bill 'be now read a Second time'. This means that the House of Commons has approved the principle of the Bill, which will now progress to the Committee stage, where the Bill's provisions will be considered in detail and some (most likely) modified.

Labour, the SNP, the Liberal Democrats, Plaid Cymru, the SDLP and the Green Party had opposed the Bill entirely. Labour tabled a 'reasoned amendment' which set out why:

'... the Bill fails to protect and reassert the principle of Parliamentary sovereignty by handing sweeping powers to Government Ministers allowing them to bypass Parliament on key decisions, without any meaningful or guaranteed Parliamentary scrutiny, fails to include a presumption of devolution which would allow effective transfer of devolved competencies coming back from the EU to the devolved administrations and makes unnecessary and unjustified alterations to the devolution settlements, fails to provide certainty that rights and protections will be enforced as effectively in the future as they are at present, risks weakening human rights protections by failing to transpose the EU Charter of Fundamental Rights into UK law, provides no mechanism for ensuring that the UK does not lag behind the EU in workplace protections and environmental standards in the future and prevents the UK implementing strong transitional arrangements on the same basic terms we currently enjoy, including remaining within a customs union and within the Single Market.'

In the end, and despite many speeches from the Opposition benches accusing the Government of an unjustified 'power grab' (many citing the House of Lords Constitution Committee's most recent report), Labour's amendment was defeated by 318 votes to 296, with no Conservatives rebelling against the Government. The Government's motion in favour of a Second Reading was then carried by 326 votes to 290. Seven Labour MPs (all of whom campaigned for Brexit) rebelled against the Labour whip and voted with the Government (and former Labour minister Caroline Flint abstained).

However, it was clear from the debate itself that some Tory backbenchers who voted for the Bill in principle (i.e. as a necessary step in giving effect to the Brexit referendum result) remain critical of the Bill's drafting and will be seeking substantial and substantive amendments to its provisions at Committee stage.

For example, former Attorney General Dominic Grieve QC has repeatedly expressed his dissatisfaction with the Bill (see this recent Evening Standard article and his contribution to the Second Reading debate) on the grounds that, amongst other things, the Bill does not provide sufficient clarity on the status of 'transposed' EU law or the enforceability in UK courts of 'imported' EU rights (particularly that the European Charter on Human Rights ceases to apply); it gives too much power to Government ministers to modify 'retained EU law' (and defines that term too widely); and it would authorise Government ministers to implement the withdrawal agreement without further Parliamentary approval. He indicated in the debate that, if the Bill was not made fit for purpose, he may vote against it at Third Reading.

The Government's position on making amendments to the Bill has not been entirely clear. On the one hand, the SSExEU, in his contribution to the debate, indicated that he would:

'welcome and encourage contributions from those who approach the task in good faith and in a spirit of collaboration. All of us, as legislators, have a shared interest in making the Bill a success and in the national interest.'

On the other hand, the SSExEu and other Government ministers, in the debate, repeatedly defended the Bill's particular provisions, including on use of statutory powers (including the Henry VIII provisions, which the Government argued are subject to appropriate safeguards), the definition and scope of 'EU retained law', the transposition of EU law, the use of sunset clauses, the disapplication of the Charter, and so on.

Tuesday saw those on both sides of the House table a host of amendments to the Bill to be considered at Committee Stage (and MPs can continue to table amendments until the day before that set for consideration of the clause they are proposing to amend).

Unlike most other Bills, this Bill is to be considered in a Committee of the Whole House (because of its constitutional significance) – in essence, using the Commons chamber as a committee room, with all MPs forming the Committee. Eight days of eight hours have been programmed for debate – so 64 hours in total – but some MPs (notably Ken Clarke, who rebelled against the Government's programme motion) have already sought reassurances that more time will be given if that proves insufficient.

Labour has issued a briefing paper summarising its amendments to the Bill as follows:

  • Delegated Powers. Labour's amendments would remove the most extensive and unaccountable 'Henry VIII' powers. For example, one Labour amendment deletes the bulk of clause 17, which as drafted would enable government ministers to amend any primary legislation affected by the UK's exit from the EU. This is the clause the Hansard Society described as 'in effect hand[ing] the government a legislative blank cheque'. (Tories are also proposing amendments to limit the use of delegated powers, eg so ministers can only produce secondary legislation which is the bare minimum needed to make the new laws work properly – some cross-party consensus may emerge here.)
  • A further Labour amendment would ensure that any withdrawal agreement that comes out of the article 50 process has to be implemented in separate primary legislation. At present the bill would enable government ministers to implement a withdrawal agreement through delegated powers. (This is more likely to be a point of difference between the parties, although a solution may be found based on the fact that Parliament has been promised a vote on the final withdrawal agreement.)
  • Labour's amendments would also establish a new independent and cross-party parliamentary committee to decide which level of scrutiny each government proposal is subjected to. (This was described in the Second Reading debate as a form of 'triage' for SIs. Tories have also tabled amendments with similar aims, so there may be some cross-party consensus here. It seems to us eminently sensible to have some mechanism to avoid swamping Parliament unnecessarily with minor corrections, while still ministers don't exceed their delegated authority.)
  • Labour has tabled an amendment to clause 11 of the bill that would ensure devolved powers returning from Brussels go directly to the devolved legislatures in Cardiff, Edinburgh and Belfast. At present the bill would 'hoard' these powers in Westminster. Labour's proposals would ensure there is a clear presumption of devolution in this bill. (This is likely to be a significant bone of contention between the Government and the opposition parties. Plaid Cymru has tabled a motion which would require a legislative consent motion to be passed by all devolved assemblies before the 1972 Act is repealed).
  • Safeguarding rights and protections. Labour's amendments would ensure:
    • there can be no watering down or drop in EU-derived rights as a result of this Bill. This protects a wide range of rights, including workplace rights, environmental standards, consumers' protections and equalities laws;
    • that important EU-derived rights can only be changed by primary legislation and not through the use of other delegated powers; and
    • that the EU Charter of Fundamental Rights is incorporated into UK law, to avoid weakening human rights and protections for UK citizens.

(Again, given the Government's stated purpose for the Bill is to maintain the substance of the law as it stands, some Tories may support changes to the Bill which clarify that existing rights and remedies will continue).

  • Transitional Arrangements. Labour's amendments would put the timing and basic terms of any transitional arrangements in the hands of parliament, not ministers. This would mean the government had to consult and get the agreement of parliament on one of the central issues in our exit from the EU.

Further amendments have been tabled from 'Remainer' MPs which seek to prevent the 1972 Act being repealed until a new UK/EU27 Treaty is in place, or to retain membership of the EEA and/or the customs union after exit day.

Conference season starts next week. MPs will have lots to talk about while they are away from Westminster, while the Government's ministers and officials will have their hands full considering what amendments, if any, they are going to allow. Parliament's detailed consideration of the Bill has only just begun.

'Sharing horizons that are new to us, Watching the signs along the way, Talkin' it over, just the two of us, Workin' together day to day' (The Carpenters, We've Only Just Begun)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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