The Lords and the EU Withdrawal Bill: 10 predictions

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The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived. 

The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:

Amendments are likely, right from the outset

1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes.  Continue reading

Amendments are needed to strengthen the Withdrawal Bill’s provisions for scrutiny of Statutory Instruments

5GMFtvPS_reasonably_smallToday saw the start of two days of report stage debate in the House of Commons on the content of the EU (Withdrawal) Bill. At committee stage, amendments were made that created a new sifting committee for statutory instruments related to Brexit. Joel Blackwell, of The Hansard Society, argues below that the current proposals are insufficient to guarantee proper scrutiny and makes several recommendations for changes that can be made before the bill passes to the House of Lords.

The EU (Withdrawal) Bill, which returned to the House of Commons for its report stage today, was successfully amended at committee stage in December 2017 to create a mechanism which will allow MPs, via a new European Statutory Instruments sifting committee, to consider statutory instruments (SIs) made under the Bill’s widest delegated powers and recommend an upgrade in the level of scrutiny of those about which they have most concern.

This new scrutiny mechanism, incorporated through a series of amendments tabled by Procedure Committee Chair Charles Walker, is intended to constrain the wide Henry VIII powers the government will use to make changes to retained EU law via SIs (under clauses 7, 8 and 9 of the Bill).

But if MPs are serious about scrutinising the changes arising from Brexit, these amendments, and the related proposals to amend Standing Orders will, as currently drafted, offer only limited help. If MPs are not happy with what the government wants to do, they will still be unable to exercise any real influence on the substance of a Brexit SI.

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Trade Bill highlights parliament’s weak international treaty role

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On 9 January, the Trade Bill successfully passed its second reading stage in the House of Commons. Intended to regulate the implementation of international trade agreements after Britain leaves the EU, it is one of the most important pieces of Brexit-related legislation currently going through parliament. In this post, which originally appeared on the website of the Hansard Society, Dr. Brigid Fowler argues that the role of parliament in influencing the drafting and agreement of British trade treaties has the potential to be weakened, not strengthened by Brexit should this bill become law.

The Trade Bill, which had its second reading debate on Tuesday, is one of the most important pieces of Brexit legislation. It is a framework Bill enabling the UK to implement the non-tariff elements of future international trade agreements, where those agreements are with states with which the EU has signed a trade agreement by the date the UK leaves.

For non-tariff issues, the Bill is aimed at addressing the domestic legislative aspect of one of the most urgent Brexit questions: how to save, in less than 15 months, the preferential trade arrangements that the UK has through the EU with, according to the Bill’s impact assessment, at least 88 countries and territories, covered by perhaps 40-plus agreements.

The Bill’s broad aim is the same as that of the EU (Withdrawal) Bill – which has its report stage consideration in the House of Commons on 16–17 January – and indeed of the government’s overall Brexit approach: to minimise the disruption to business and consumers at the moment when the UK leaves the EU on 29 March 2019.

But, as regards trade agreements, the EU (Withdrawal) Bill on its own cannot do the job, because capturing the provisions of trade agreements that the EU might sign right up to Brexit day may require domestic implementing powers that last beyond those in that Bill.

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The size of the House of Lords: what next?

This week two developments have revived controversies about the size of the House of Lords. On Tuesday peers debated the report of the Lord Speaker’s Committee on the Size of the House, indicating strong support for its proposals. But there were also rumours that Theresa May will appoint new peers in the New Year. Meg Russell reflects on these developments and how they can, and should, fit together.

The growing size of the House of Lords, and particularly the volume of prime ministerial appointments, has been highly controversial in recent years – as set out in a Constitution Unit report in 2015, and frequently highlighted on this blog (e.g. here). This time last year the chamber took matters into its own hands, agreeing a motion that ‘this House believes that its size should be reduced’, which was rapidly followed by the announcement of a new Lord Speaker’s Committee on the Size of the House, chaired by Crossbencher Lord Burns. The Burns report was published in October, and was debated in the Lords on Tuesday.

Source: Report of the Lord Speaker’s Committee on the Size of the House, Figure 1

The core proposals in the report (previously summarised on this blog by Sir David Beamish) are to bring the size of the chamber down to a ‘steady state’ of no more than 600 members, appointed for fixed 15 year terms. Appointments would continue to be made by the party leaders, but would respect a proportionality formula based on previous general election results. In the steady state the number of appointments would match retirements, but until then a ‘two out one in’ principle would apply. The report estimated that the target of 600 members would be achieved in around 11 years. All of this would be achieved by negotiation, backed up by changes to House of Lords rules and procedures, without the need for legislation.

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Report of the Lord Speaker’s Committee on the size of the House of Lords: a real opportunity for progress on reform

Yesterday saw publication of the report of the Lord Speaker’s Committee on the Size of the House of Lords, which recommended moving to a chamber of no more than 600 members, appointed for 15-year terms. This follows years of controversy about the growing size of the Lords, which currently stands at over 800. Sir David Beamish, formerly the most senior official in the House of Lords, argues that the proposals offer the best opportunity for years for some small progress on the knotty issue of Lords reform.

The recommendations of the Lord Speaker’s Committee on the Size of the House of Lords, published yesterday, offer the best opportunity for many years to reform the membership of the House of Lords in a way that can – and should – achieve sufficient consensus across the political spectrum. The committee’s recommendations for reform without the need for legislation are both thoughtful and ingenious.

House of Lords reform has usually been stymied by lack of agreement on what should replace the existing second chamber. It has generally proved impossible to get a majority for any one proposed reform. The most striking exception was the removal of some 650 hereditary peers in 1999, thanks to the 1997 Labour manifesto having included a specific commitment. But that was billed as the first stage of a two-stage reform, and that second stage remains elusive.

The 1999 Royal Commission on Reform of the House of Lords, chaired by Lord Wakeham, undertook what might be called a ‘zero-based review’ of the second chamber, looking at what functions were appropriate to a second chamber, what powers were needed to perform those functions, and only then how the second chamber should be constituted. It was affirming for the House of Lords that the recommendations on functions and powers were generally for little change – a proposal for a Constitution Committee was quickly implemented without awaiting wider reform – and ever since then the debate on Lords reform has focused primarily on composition. The issue of powers resurfaced briefly after the House upset the Conservative government in October 2015 by failing to approve the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations, leading to a review by Lord Strathclyde of the Lords’ powers in relation to secondary legislation. However, the Brexit referendum led to a change of priorities, and Lord Strathclyde’s proposals were put on the back burner. With the government’s loss of its Commons majority in June 2017, it seems unlikely that those proposals could now be implemented even if the government wished.

Against a background of no likelihood of major Lords reform in the next few years, the impact on the House of large numbers of appointments of life peers by successive prime ministers (with the honourable exception of Gordon Brown) became a matter of serious concern to members. The increase in numbers led to increased costs, pressure on resources (including seating in the chamber – attendance at prayers boomed when members realised that that was the only way to be sure of a seat at question time), and a significant negative impact on the House’s reputation.

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A helping hand? Tracking changes in support to all-party parliamentary groups since 2001

There are now over 600 All-Party Parliamentary Groups in the UK parliament, with the number having more than doubled since 1997. In this post Paul Thomas discusses the monetary and in-kind support these informal groups receive, suggesting that most could not operate without it. He compares information about APPGs in 2001 and 2017, finding that the level of support from NGOs and charities has increased significantly. This may go someway to explaining the growth in APPG activity.

In addition to the formal system of cross-party select committees, Westminster is home to a vast number of informal bodies known as all-party parliamentary groups (APPGs) that bring together MPs and peers from different parties to collaborate on issues of shared concern. APPGs have attracted increased media and political attention in recent years due to their explosive rate of growth, increasing policy advocacy, and concerns about the support they receive from external stakeholders. At present, this external assistance is estimated to be worth nearly £6 million per year, and critics are especially concerned about the potential influence of corporations or business groups on APPG activities.

As part of a broader research project comparing the growth and influence of APPGs in Canada and the UK, I examined whether these three trends are related – that is, whether the recent growth of British APPGs results from increased interest from external stakeholders who see the groups as vehicle to influence policy. My findings indicate that external support, and especially the rising support from charities and NGOs, has indeed contributed to the expansion of APGs in recent years. Moreover, much of the growth in support for APPGs has been through in-kind contributions, which often includes outside organizations managing group activities and writing their reports. These results suggest that concerns over corporate influence on APPGs may be somewhat misplaced, with NGOs and charities not only providing more funds that corporations or business associations, but doing so in a way that makes it easier for them to influence APG activities.

An introduction to all-party parliamentary groups

APPGs are divided into two main types: those focused on relations with other countries, and subject groups that deal with specific policy issues, regions of the UK, or stakeholder communities. The first APPG, the Parliamentary and Scientific Committee, was established in the 1930s. The number in operation then grew steadily over the following decades to reach 242 in 1996. However, following the 1997 election this growth accelerated, with the total hitting 592 prior to the 2010 election. While slowing, as shown in Figure 1, this expansion continues, especially among subject groups. There were 631 APPGs registered in May 2017: 132 country groups, 496 subject groups, and three sports clubs (for ease of analysis, these clubs are considered with the subject groups).

APPGs have no formal role in the parliamentary processes for either scrutiny or legislation. Many are largely passive, serving to facilitate the exchange of information between and among parliamentarians and stakeholders through e-mail lists or occasional receptions. Yet a growing number have distinct policy objectives or agendas. These groups employ a variety of tools to achieve their goals, with their members sponsoring parliamentary debates, conducting select committee-style inquiries, and introducing private members’ bills. While determining the exact reasons behind a government decision can be challenging, pressure from APPGs has contributed to policy changes in areas as diverse as cyclingtobacco control, fuel duty, and the prevention of anti-Semitism.

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