The EU Withdrawal Bill: parliamentary prospects

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.

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Taking back control? Initial thoughts on the Great Repeal Bill white paper

In the newly published Great Repeal Bill white paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not parliament, that will benefit from the Great Repeal Bill process. The Hansard Society’s Ruth Fox has five initial questions raised by the white paper.

1/ When will the parliamentary votes on any Brexit deal be held?

The white paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both chambers of parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the white paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the white paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.

2/ Is the government’s description of the delegated legislation process accurate?

On page 23 of the white paper, the government states that parliamentary procedures allow parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that parliament can and regularly does both debate and vote on secondary legislation.

What the white paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not parliament. Paragraph 3.21 states that under the negative procedure members of either chamber can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3 per cent of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just five were granted.

Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.

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Reflections on the Strathclyde Review

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Lord Strathclyde’s report into the House of Lords and secondary legislation, published before Christmas, is to be debated in the Lords today. Ruth Fox and Joel Blackwell from the Hansard Society, which last year published a comprehensive study of the secondary legislation system, respond to Strathclyde and argue that his proposals are no way to undertake reform – an independent inquiry into the legislative process is required.

Following the controversial tax credits regulations vote in the House of Lords last October, the Prime Minister asked Lord Strathclyde to conduct a ‘rapid review’ of Statutory Instruments (SIs) to consider ‘how more certainty and clarity could be brought to their passage through Parliament’ and the primacy of the House of Commons assured. The Strathclyde Review was published before Christmas and will be debated in the Lords this afternoon.

Just over a year ago the Hansard Society published the first comprehensive study of the SI system for nearly 80 years, The Devil is in the Detail: Parliament and Delegated Legislation. In responding to Lord Strathclyde’s report we are thus able to draw on three years of research. Since the start of this new parliamentary session we have also begun to track every SI that is subject to parliamentary scrutiny, enabling us to maintain the most comprehensive and up to date monitor of delegated legislation available each week.

This response to the Strathclyde Review is not a comprehensive analysis of every aspect of the report; rather, it focuses on what we consider to be the key elements of concern, which we hope will inform the debate about it in the House of Lords.

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