Brexit Update: the role of the House of Lords

PASSAGE OF A BILL

The diagram above illustrates the stages a Bill starting in the House of Commons must go through to become law.

The first stage is generally a formality; the short title of the Bill is read out and is followed by an order for the Bill to be printed.  The second reading is the first opportunity for MPs to debate the general principles and themes of the Bill.  The Government minister or MP responsible for the Bill opens the debate and the official Opposition spokesperson responds.  The House then has a debate and votes on whether the Bill should proceed on to the committee stage.  This stage is usually held in committee, as the name suggests, and the committee is able to take evidence from experts and interest groups from outside Parliament.  Amendments for discussion are selected by the chairman and only members of the committee can vote.  After the committee stage, the Bill is reprinted with all agreed amendments and returns to the House of Commons for its report stage, when all MPs have an opportunity to consider and vote on further amendments.  The final opportunity for debate on the Bill is the third reading, which usually takes place immediately after report stage as the next item of business on the same day.  The debate is usually short, as no further amendments can be made at the third reading.  At the end of the debate the House votes on whether to approve the third reading of the Bill.  The Bill then goes to the House of Lords to go through exactly the same process.  The Withdrawal Bill has just completed its report stage in the House of Lords.

THE AMENDMENTS APPROVED BY THE LORDS

It was widely anticipated that the Lords would make substantial amendments to the Withdrawal Bill for a number of reasons.  They had already indicated at earlier stages their unease with the wide range of powers the Government proposes to give itself to pass secondary legislation (so called “Henry VIII powers”) in order to be able to pass the vast amount of legislation needed to implement Brexit.  In addition, there is a substantial pro-Remain majority in the Lords, and since they are unelected they have no fear of Leave-voting constituents “punishing” them for opposing the Withdrawal Bill.  Finally, the Conservatives do not have a majority in the Lords, and therefore cannot rely on “whipping” to win votes there.

Tempers are, understandably, running high, with accusations from pro-Brexit politicians and the press that the Lords are seeking to “subvert the will of the people” as demonstrated by the Referendum result.  The pro-Remain response to this is that, when it comes to the finer detail of issues such as membership of the Single Market or the Customs Union, as distinct from the binary “in or out of the European Union” question posed by the Referendum, the “will of the people” cannot be divined from the result almost two years later.

In all, the Lords voted for 14 amendments of which the most significant are:

• Measures to force the Government to keep Britain a member of the European Economic Area (EEA), and in the Customs Union.  The latter amendment was the first to be passed and was highly controversial, prompting headlines about “Brexit betrayal”.  The Lords voted 348 for and 225 against, the seventh largest House of Lords vote on record.  The Government’s position is that staying in the Customs Union would make the UK bound by the EU’s tariffs and in a worse trade position, and that remaining in the EEA would not deliver control of UK borders or laws, and, by continuing to implement EU legislation, would undermine the referendum result.
   
• A requirement that Parliament should have a “meaningful vote” on the outcome of the negotiations with the EU.  Those in favour argued Parliament should be able to decide against a “poor deal” or “crashing out” of the EU with no deal as either would be disastrous for the UK.  It is not clear, however, what options the Government would have if Parliament did vote down an agreed settlement with the EU, or indeed a decision to leave with no deal, since the cooperation of the EU would be essential to reopen negotiations.  Interestingly, the Lords voted down a proposed amendment for a second referendum on the deal.
   
• A requirement for the Government to obtain Parliament’s approval of its mandate for negotiations about the UK’s future relationship with the EU once the Withdrawal Agreement has been agreed and is in force (the “having a say” requirement).
   
• The inclusion of the intentions of the Good Friday Agreement as part of the Bill, in order to protect the peace process.  This provision reflects the on-going confusion over how the Government’s insistence on not being a member of the Customs Union is to be reconciled with its stated commitment to the absence of a hard border on the island of Ireland, a fundamental principle of the Good Friday Agreement.
   
• The keeping in force of the EU Charter of Fundamental Rights in retained EU law after Brexit.  The Government had argued that keeping the Charter had the potential of overriding acts of Parliament with “foreign law” after Brexit, which would be a  “constitutional outrage”.  If this provision does stay in the final Act, the UK will continue to be subject to the jurisdiction of the European Court of Justice in this regard.
   
• The removal of the 29 March 2019 exit date, on the basis that it may be necessary to have an extension.
   
• Provisions to ensure the UK’s continued participation in EU agencies after Brexit.

The Lords also voted in favour of a number of amendments to curb the use of statutory instruments and Henry VIII powers; in particular, ministers will only be able to make new law when it is necessary (rather than in their view, “appropriate”) to do so.  They also voted in favour of amendments on animal rights and the maintenance of refugee family unity within Europe, an amendment proposed by Lord Dubs who championed the amendment to the UK Immigration Act 2016, which bears his name and requires the Government to reunite unaccompanied child refugees with relatives in the UK.  

WHAT NEXT?

The Withdrawal Bill now proceeds to its third reading, which is scheduled for 16 May.  It will then go back to the Commons for consideration of amendments.  If the Commons do not accept all the Lords’ amendments (which is highly likely), the Bill will be sent back to the Lords, since both Houses must agree on the exact wording of the Bill.  A Bill may go back and forth between the Houses for some time, a process known as “Ping Pong”.  Only once the Commons and the Lords agree on the final version of the Bill can it receive the Royal Assent and become law.  If the two Houses have not reached agreement by the end of this Parliamentary session, it will fail, but the Government will be able to use the Parliament Acts to pass the Bill, without the consent of the Lords, in the next session.  This would be a highly unusual constitutional development, and would likely add further fuel to the debate about the constitutional status of the UK’s unelected second chamber.

This Client Alert is not intended to constitute legal advice and should not be taken as a recommendation to take action or withhold from taking action.