The EU (Withdrawal) Bill received its second reading in the House of Commons by a relatively comfortable margin in the early hours of Tuesday morning. During the remainder of its parliamentary passage the government is likely to come under greater pressure, particularly on the issue of the delegated powers in the bill. On 13 September the BBC’s Mark D’Arcy and the Hansard Society’s Ruth Fox spoke about the prospects at the Constitution Unit. Alex Diggens and Jack Sheldon summarise what was said.

The European Union (Withdrawal) Bill looks set to be one of the most significant and controversial pieces of legislation to pass through parliament in recent memory. Ostensibly a bill to repeal the European Communities Act 1972 and manage the process of converting EU law into domestic law, the bill has far greater scope. It hands significant delegated powers to ministers, allowing them to make changes to remedy supposed ‘deficiencies’ in both secondary and primary legislation through statutory instruments (SIs) and to implement the eventual withdrawal agreement. It also has major implications for the devolution settlements, as outlined in a previous blog post.

In the early hours of Tuesday morning the bill received its second reading in the Commons by the relatively comfortable margin of 326 votes to 290. However, the upcoming Commons committee and report stages, as well as the bill’s passage through the House of Lords, are likely to pose much greater difficulty for the government. On 13 September the Constitution Unit held a seminar to discuss the prospects. Chaired by the Unit’s Dr Alan Renwick, the panel comprised two experts on the dynamics at play: Mark D’Arcy, the BBC’s Parliamentary Correspondent, and Dr Ruth Fox, Director of the Hansard Society.

Dr Alan Renwick introduces the seminar

Mark D’Arcy

Mark D’Arcy focused his remarks on the party-political landscape in relation to the bill and the key types of amendments that are being brought forward.

On the party-political landscape, D’Arcy argued that the bill’s passage will be a drawn-out battle, but one that the government go into reasonably confidently. He said that 10 Downing Street is working hard to keep open links with all of the Conservative factions, and that none of them is seeking to kill the bill. The Tory ‘Remain’ contingent in the Commons is small, and they recall the infighting during the Major years; they therefore recognise that actively fighting Brexit would be ‘career death’. D’Arcy suggested that ‘Bregretters’ might be a more accurate term for this group as they do not actually seek to prevent Brexit. The House of Lords have expressed significant reservations about the bill, notably through the influential Constitution Committee, but D’Arcy predicted that they will be constrained by not wanting to be seen fighting against ‘the people’.

As soon as the second reading vote went through the Commons, queues were forming to put amendments forward. The ‘Bregretters’ put down several, led by the former Attorney General Dominic Grieve. The focus of their amendments was on overseeing the technical operation of the bill, particularly on identifying which SIs require thorough parliamentary scrutiny. Another group of amendments comes from the Labour ‘Remain’ group. These tend to be more ambitious – they keep open options for the future, for instance the option to remain in the Customs Union, or perhaps even the European Economic Area. Other groups have more niche concerns – for example, some MPs are pushing to entrench specific rights provided by EU law.

The government intend to deal with these amendments on a case-by-case basis. On the process and operational matters there are recognised disputes and the government are willing to make concessions, as was indicated in the speech closing for the government at second reading. D’Arcy noted that the choice of David Lidington, Justice Secretary and a former Europe minister who is in sympathy with many of the ‘Bregretters’, was telling. More ambitious amendments, such as those from pro-EU Labour MPs on matters of policy, are being treated with hostility as potential wrecking amendments.

D’Arcy concluded by looking ahead to the likely areas of parliamentary dispute relating to Brexit in future, beyond the passage of the Withdrawal Bill. He identified three. First, the ‘divorce bill’.  This could be contentious, particularly if there are payments that are unduly onerous or are payments for ‘access’ to the EU market. Second, the future relationship. D’Arcy cited the joint article by Philip Hammond and Liam Fox in the Sunday Telegraph; this and similar interventions are used to ease Brexiteer anxieties and will be pored over with scholarly focus to identify any backtracking. Third and finally, the transition deal, whatever form it may take. Some MPs are concerned that it could continue indefinitely, while others worry that businesses will be forced to make two adjustments.

Ruth Fox

Ruth Fox began by remarking that it had been a discombobulating morning at the Hansard Society. They had discovered that they had been quoted in Vanity Fair, and on no less weighty a topic than the parliamentary scrutiny of delegated legislation. It was this subject – usually obscure, but suddenly a source of major controversy as a result of the delegated powers in the Withdrawal Bill – that Fox focused on in her contribution.

Ahead of the second reading debate the Society published a report on the delegated powers in the bill, in which it is argued that as currently drafted they will strengthen the hand of the executive rather than parliament. A three-part solution to redress the balance is proposed: amendments to the bill to circumscribe the delegated powers more tightly, a strengthened scrutiny procedure for the exercise of powers under the bill, and wider reforms of the delegated legislation process. Fox described this as a pragmatic approach, recognising that it is not realistic to start from a blank sheet of paper.

She explained that the Society’s case for a strengthened scrutiny procedure for the powers under the Withdrawal Bill is twofold. First, under current arrangements the level of scrutiny (the affirmative or negative procedure) that a particular SI under the bill would be subject to is determined by categories set out in the bill. Fox argued that this amounts to dictating to parliament what they are likely to want to debate without knowing exactly how the powers would be exercised. Second, in the Society’s view – and those of many MPs – the existing procedures for scrutiny of delegated legislation in the House of Commons are inadequate. Fox therefore suggested that, without a strengthened process, any MP who thinks that they are going to be able to exercise any influence over the course of decisions in relation to Brexit will be disappointed.

The strengthened scrutiny procedure proposed in the Hansard Society’s report would hand the power to decide the level of scrutiny for each SI under the Withdrawal Bill to parliament. The Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee in the House of Lords and a new Delegated Legislation Scrutiny Committee in the House of Commons would make these decisions once they know exactly how ministers propose to use the powers. In the Commons SIs would then be subject to a ‘sift and scrutiny’ or ‘triage’ system of committee review, instead of being debated in a committee appointed by party whips as is the case at present.

Fox was optimistic that something resembling these recommendations may be taken up during the bill’s passage. She said that indications are that ministers have recognised they will need to make concessions on this issue. In the Commons, 14 Conservative MPs, headed by Dominic Grieve, have signed an amendment that would essentially introduce the Hansard Society’s proposed procedure. Fox thinks that, as well as MPs who supported Remain in the referendum, some Brexiteers, many of whom couched their support for Brexit in the context of parliament taking back control, might coalesce around this on grounds of constitutional principle. Even if the bill can be got through the Commons without amendments detailing a strengthened scrutiny process, there is little chance that it could get through the House of Lords, which has a long history of inserting such procedures into bills, without them. Fox said that the government will therefore need to think carefully about precisely when to make its concessions.

Concluding thoughts

Asked by the chair to predict how much the bill would change over the course of its parliamentary passage, D’Arcy and Fox agreed that it would be amended substantially. The early signs are that, at least in the Commons, this is more likely to result from ministerial concessions to parliamentary opinion than a succession of government defeats. It will be fascinating to see how far these concessions go, particularly in relation to parliamentary scrutiny of delegated powers. If ministers yield to demands for a system along the lines proposed by the Hansard Society this may not only ensure that SIs under the Withdrawal Bill receive greater scrutiny than they otherwise would but also set a precedent for wider reform of the delegated legislation process in the future.

About the speakers

Mark D’Arcy is the BBC’s Parliamentary Correspondent.

Dr Ruth Fox is the Director of the Hansard Society.

About the authors

Alex Diggens is a Research Volunteer at the Constitution Unit.

Jack Sheldon is a Research Assistant at the Constitution Unit, and the editor of the Constitution Unit blog.