Amendment to the European Union (Withdrawal) Bill

Posted in UK and EU legal framework

The UK Government has suffered a significant parliamentary defeat in the continuing debate over the European Union (Withdrawal) Bill.

As we have discussed previously, since the Bill was introduced, concern has been raised (including by some Conservative MPs) about the extent of Henry VIII powers (powers to use delegated legislation to amend primary legislation) contained in the Bill.

Now, the Government has lost a vote on an amendment to clause 9 of the draft legislation. In its original form, clause 9 provided as follows:

9(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be  in force on or before exit day.

9(2) Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

9(3) But regulations under this section may not—

a. impose or increase taxation,

b. make retrospective provision,

c. create a relevant criminal offence, or

d. amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it.

9(4) No regulations may be made under this section after exit day.

While the Government had previously indicated that MPs would be able to vote on any Brexit deal, clause 9, as drafted, suggested that the Government would be able to pass legislation to implement any deal irrespective of the result of a parliamentary vote.   The provision would also have given Ministers power to pass secondary legislation modifying the Withdrawal Act (once passed) itself.

The amendment, which passed by four votes, adds to the clause the provision that the powers listed above be "subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”

The amendment enhances Parliament’s role in the Brexit process by ensuring that there will be a vote on any final Brexit deal, and moreover, that the Government will be unable to pass legislation to implement such deal until then.

Further, this defeat might not be the end of the matter.  Several hundred proposed amendments to the Bill have so far been tabled, with many still to be voted on. Given that the Conservatives do not have a majority in Parliament, MPs emboldened by this result might now be confident on ensuring further amendments to the Bill before it comes into law.

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