The European Union (Withdrawal) Bill in the House of Lords

Posted in UK and EU legal framework

The European Union (Withdrawal) Bill has had its third reading in the House of Lords.

Over the past few weeks, the Bill has been extensively debated in the House of Lords, with 316 amendments being tabled.   192 amendments were made to the Bill, which included 15 votes where the Government was defeated.

A key proposal on which the Government was defeated was an amendment requiring the Government to include as an objective in negotiations to seek continued participation by the UK in the European Economic Area (EEA) post-Brexit, which, along with the earlier defeat on the amendment  requiring Ministers to explore the option of the UK remaining in a customs union, is likely to be heavily contested when the Bill returns to the House of Commons.

Another amendment which resulted in a defeat for the Government was for the removal of the prescribed moment of "exit day" as 11.00pm on 29 March 2019, which itself was a change from the original draft of the Bill. The House of Lords’ amendment instead provides for exit day to be determined by regulations, as was the case in the original draft of the Bill. The rationale for the change is that this would provide greater flexibility – although it should be noted that how exit day is defined in the Bill will not alter the fact that the UK will leave the EU on 29 March 2019 in accordance with Article 50 of the TFEU in any event, unless there is a different agreement between the UK and EU or the Article 50 notice is validly withdrawn.

Other votes on which the Government was defeated included amendments addressing: enhanced scrutiny for future changes to retained EU law in certain policy areas; continuation of North-South cooperation and the prevention of new border arrangements in Northern Ireland; future relationship with EU agencies; giving parliamentary committees the ability to insist that certain statutory instruments are made using the affirmative procedure; and a change to the threshold for using certain delegated powers to be when it is “necessary” rather than when the minister considers it “appropriate”. The last two are both attempts to limit changes to EU-derived laws by executive powers – an issue which has controversial since the Bill was first published. Most recently, the Government lost a vote on an amendment to preserve EU environmental standards post-Brexit.

The latest version of the Bill can be found here. The Bill will now return to the House of Commons where the Government will seek to overturn the amendments on which it lost in the House of Lords.  This will, however, require a vote on each of the amendments on which the Government was defeated in the House of Lords and will likely provide a clue to the extent to which the Government is able to command a majority in the House of Commons on the some of the key areas of contention in relation to Brexit.

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