Tuesday 12 September 2017

Deep concerns as EU (Withdrawal) Bill passes Second Reading in House of Commons

For all the sound and fury, the European Union (Withdrawal) Bill survived its Second Reading in the House of Commons by 326 votes to 290 - (majority 36).  The debate and the voting may be seen at Hansard Online - European Union (Withdrawal) Bill - Day 2 .  Day 1 of the Second Reading was on Thursday 7th September - Hansard.   The House of Commons debate highlighted serious concerns about the Bill including the way in which Parliament is in danger of becoming akin to a rubber stamp for Ministers.

Deep concerns remain:

The next step is Committee Stage which will take place over 8 days and to which a timetable will apply.  Given the deep concerns over how Ministers might actually use the delegated legislation powers granted to them by the Bill, we can expect a large number of amendments to be put forward. 

As the Bill stands, there are 14 powers for Ministers to make delegated legislation including "Henry VIII powers" by which Ministers will be able to amend Acts of Parliament and, in doing so, they could amend the law in almost any way they think fit with only minimal Parliamentary scrutiny.  The balance of power in the UK will be altered significantly in favour of Ministers and away from Parliament.

The extensive use of delegated legislation is a major concern at the best of times.  In the 7 years 2010-16 some 19,503 Statutory Instruments were made.  Various Parliamentary controls exist in relation to such legislation but these are not equal to the task of scrutinising the sheer volume of legislation produced.  No exact figure exists as to the amount of delegated legislation which will be produced under the powers in the Withdrawal Bill but it is likely run into hundreds of separate statutory instruments.

It is also worth noting at this point that the Withdrawal Bill is not going to be the only Brexit-related legislation since several further Bills are expected and these will almost certainly contain their own delegated legislation powers.

The recently published House of Lords Constitution Committee report - previous post - raised additional concerns about the deep legislative competence given to the executive and the lack of the more detailed scrutiny as recommended in their previous report.  "The Bill weaves a tapestry of delegated powers that are breathtaking in terms of both their scope and potency.".  

Devolution - The Bill is unpopular with the devolved administrations of Scotland and Wales.  The issue here is that powers currently exercised by the EU would return to the UK government and it would be for that government to then make whatever devolution arrangements are required.  There is a clear lack of political trust that this will be done in a way that is satisfactory to the devolved administrations.  The First Ministers issued a joint statement concerning refusal of legislative consent - Joint Statement by the First Ministers of Scotland and Wales and their updated positions were issued on 12th September - Scottish Government HERE (12th September) and Wales HERE.   If such consent is withheld it will not prevent the UK Parliament from ploughing on with the legislation but that would raise very profound constitutional questions.

With regard to devolution, the Constitution Committee report comments that:

"The UK’s departure from the European Union will have profound consequences for the devolution settlement within the UK. The ambiguities and uncertainties in the Bill extend to issues of devolved competence and this has implications for the balance of the power within the Union and the future of the devolution settlements.  Overall, we conclude that the Bill is highly complex and convoluted in its drafting and structure. This is not to deny that it must inevitably grapple with a set of difficult legal issues. But it is a source of considerable regret that the Bill is drafted in a way that renders scrutiny very difficult, and that multiple and fundamental constitutional questions are left unanswered."

Timetable and possible amendments:

A further concern ought to be the timetable voted for by MPs which allows 8 days only for the Committee Stage - a total of 64 hours.  The allocated time is broken down into sections such that particular clauses will receive only a stated amount of time.  It remains to be seen whether the eight days is adequate to allow for detailed consideration of the Bill and of any amendments brought forward.

Likely amendments will probably include:
  • Henry VIII powers
  • Approval by Parliament of any final withdrawal agreement negotiated with the EU
  •  Remaining part of the EU Single Market and Customs Union - both key features of EU membership and both of major economic significance
  •  Devolution and the powers of the devolved administrations and institutions
  •  Protection of human rights
  •  Protection of Worker Rights
  •  Maintaining environmental standards  
Amendments are already being tabled .... Parliament - Notices of amendments up to and including Monday 11th September
 Media and other links:

Links will be added below as and when they become available .....

The EU Collection

The Guardian 12th September - With my proposed changes to the repeal bill, Henry VIII will stay in his grave - John Penrose MP

Politics.co.uk - This is just the start of the Brexit attack on democracy

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