Crunch time for the EU (Withdrawal) Bill

Posted in UK and EU legal framework

The EU (Withdrawal) Bill has returned to the House of Commons for its third reading and over two days (12 and 13 June), MPs voted on significant amendments which had been tabled by the House of Lords.

As detailed in our previous blog post, the Government had been defeated on 15 amendments in the House of Lords and prior to the Bill returning to the House of Commons, the Government published its response. A summary was published by the Institute for Government think tank.

The first day of the debate in the House of Commons centred on a House of Lords amendment tabled by Viscount Hailsham, which set out a timetable to ensure that MPs would be given a “meaningful vote” on the final terms of withdrawal and that the House of Commons would have the power to decide on next steps in the event of a “no deal” scenario. In an attempt to address concerns within its own party and avert the risk of defeat, the Government had previously proposed an “amendment in lieu” which would have allowed Parliament to vote on and approve the final terms of withdrawal but which put the Government (rather than Parliament) back in control of any next steps. It became clear, however, that the Government might be still heading for defeat, only averted due to last minute negotiations with “rebel” Conservative MPs, where assurances as to concessions gave the Government the support it needed to defeat Viscount Hailsham’s amendment by a majority of 26. On 14 June, the Government tabled a further amendment  to address the “meaningful vote” issue ahead of the amended Bill going back for further consideration to the House of Lords next week (18 June). However, it appears that what has been proposed might not be sufficient to satisfy opponents within the Prime Minister’s own party and an alternative amendment has also been tabled seeking to bolster the role of Parliament in the event of a no deal scenario. 

The Government was successful in securing a majority on all other votes before the House of Commons on the first day, in some cases proposing altered wording or “amendments in lieu” to the proposed House of Lords amendments. Amendments rejected by the House of Commons on the first day included an amendment aimed at limiting the use of “Henry VIII clauses” in the Bill (powers which enable Ministers to amend or repeal primary legislation by the use of secondary legislation) to when it is “necessary” rather than “appropriate” to do so and an amendment aimed at providing some flexibility in negotiation by removing a stipulated “exit” date of 29 March 2019 from the Bill.   The retention of a specific date in the Bill merely reflects the reality that the UK will leave the EU on 29 March 2019 pursuant to Article 50 of the Treaty on European Union, unless either the UK and the EU agree to extend the two year period for departure, or the Article 50 notice is withdrawn.  There is legal debate as to whether the Article 50 process can be stopped by a unilateral withdrawal of notice by the UK.

The key “vote” for the Government on day two of the debate related to an amendment which would have prevented repeal of the European Communities Act 1972 until Ministers had examined and presented options to Parliament on the possibility of staying in a Customs Union. This was expected to be a close vote because of cross-party support for staying in some form of Customs Union. However, an “amendment in lieu” by the Government requiring the Government to lay a statement before Parliament before October 2018 on steps taken to negotiate a Customs “arrangement” was sufficient to secure the support it needed to reject the Customs Union wording proposed by the House of Lords. 

Ultimately, the Government succeeded in reversing all of the House of Lords’ amendments with which it did not agree. The further amendments made to the Bill by the House of Commons at third reading stage now go back for consideration to the House of Lords. It is widely anticipated the Viscount Hailsham’s amendment will be reintroduced by the House of Lords in some form.  The Bill will continue to pass between the House of Lords and House of Commons in what is known as the “ping pong” phase before both Houses reach agreement on final wording and the bill is ready for Royal Assent.

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