Ongoing disputes over Clause 11

Following the Joint Ministerial Council Meeting on Thursday, this new round of talks with devolved administrations again resulted in no new agreement over clause 11. It means that the UK Government will seek to amend the EU Withdrawal Bill on matters pertaining to devolution regardless of whether Scotland and Wales consent.

The UK Government has offered to put on the face of the EU Withdrawal that while frameworks are being agreed, the presumption would be that powers returning from the EU should be devolved. BUT In the event that no agreement is reached there would be a provision for the UK Government to have powers over some policy areas, something unacceptable to the Welsh and Scottish governments. They remain determined that all powers should be devolved and new frameworks should be jointly agreed. The Government will now press ahead with the publication of the amendments which will come before the House of Lords debate clause 11 in a couple of weeks.

Yesterday also saw the EU throw down an ultimatum to Theresa May in Brexit talks, warning that it will not open discussions about trade or other issues until the Irish border question is solved

Latest from the House of Lords debates on the EU (Withdrawal) Bill

As peers continue to give the EU (Withdrawal) Bill their usual forensic scrutiny, it is worth taking a look at what appears to be some of the key concerns and pressing issues. No amendments have been pushed to a vote yet and the common pattern seems to be that peers seeks clarification and commitment that the Government will revisit issues at Report stage.

Last week, peers covered issues relating to reciprocal healthcare arrangements with the EU, European Medicines Agency,Higher Education research funding and collaboration with Europe and UK’s participation in programmes and initiatives like Erasumus+. Unsurprisingly, the Government said they could not give any definitive assurances as these are matters for negotiations.

Rights and protections

The EU Charter of Fundamental Rights continue to be a concern among peers (although legal opinion on the loss of the Charter differs among peers). The legal advice obtained from the Equality and Human Rights Commission - which conclude that rights will be weakened if the Charter is excluded- has been repeatedly quoted by peers like Lord Goldsmith (Labour) who also said that “it is no wonder that many NGOs and many members of civil society are deeply troubled about the exclusion of the charter”.

Members examined environmental protections and how to ensure they wouldn’t be weakened or removed. The principle of equality and ensuring that current protections from discrimination on grounds of race, sex, property, birth, disability, age or sexual orientation was discussed, with members keen to see existing rights transferred effectively.

Limits on the breadth of powers handed to ministers

On Wednesday, peers discussed amendments aimed at limiting the excessive Henry VIII powers handed to ministers in the Bill. Crossbencher and former head of civil service Lord Wilson spoke to amendment 71 which sets out that ministers can only use powers where necessary, rather as ministers consider it appropriate. Interesting to note that former Conservative Lord chancellor Lord Mackay, who has so far been on the Government’s side on this bill, supported the move to make Henry VIII powers subject to necessity rather than appropriateness. Former Lib Dem leader Lord Campbell said that “taking back control” does not mean “take it back so we can give it to 109 ministers and public authorities”. Speaking on behalf of the Government, Brexit minister Lord Callanan did little to reassurance peers by saying that the word ‘appropriate does not give “unlimited discretion but should be appropriate to address the deficiency they are meant to meet”.

On a more positive note, Government spokesperson Baroness Goldie responded to Baroness Hayter (Labour) amendment 80 which sets out to remove the discretion for ministers to determine what a deficiency in retained EU law is, by saying that the Government intended to “tighten any slack” and "make sure they're not capable of too much or too little"

Status of retained EU law

This week, peers have debated what legal status retained EU law should receive- an important issue that was largely missed during the debates in the House of Commons (retained EU law is a new category of law that will consist of all the converted EU law and preserved EU-related domestic law).

As currently drafted, the Withdrawal Bill does not say whether retained EU law will be treated as primary or secondary legislation- or something else entirely (in the UK, EU law is currently subject to the principle of supremacy). Lord Pannick (crossbench and on the Constitution Committee) sought clarification from the Government on this issue.

The Lords Constitution Committee report on the bill has recommended that all retained EU law should be classified as primary legislation- so as to mirror the current status of EU law as much as possible to “secure legal continuity and certainty post-Brexit”. Lord Pannick also argued that “another advantage of treating all retained EU law as primary legislation is that it would not be capable of amendment under existing delegated powers which are not Henry VIII powers”.

Worth noting that there is some difference of opinion among the Constitution Committee and the Bingham Centre for the Rule of Law. While the Bingham Centre agrees that the failure of the Withdrawal Bill to address the legal status of retained EU law is seriously problematic, the centre argues for a different approach which would prefer the Bill to accord a legal status to retained EU law that depends on the status which the norm had in EU law pre-exit day. Lord Pannick expressed that he “would be content with such a solution to this complex problem on which different views may reasonably be taken as to the solution”

Lord Keen, the spokesperson for the Ministry of Justice in the House of Lords responded to those concerns about retained EU law by saying that “ it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others”.

Remaining stages of EUWB Committee Stage in the House of Lords:

Monday 12th March (day 6)
Wednesday 14th March (day 7)
Monday 19th March (day 8)
Wednesday 21st March (day 9)
Monday 26th March (day 10)
Wednesday 28th March (day 11)

Upcoming webinars:

Next week, we’ve got two webinars with brilliant guest speakers.

On Monday 17.00-18.00, we’ll be speaking environmental issues with the Withdrawal Bill- joined by Tom West from ClientEarth.

On Wednesday, 13.00-14.00, Ruth Fox from the Hansard Society will be discussing the constitutional issues with the bill, particularly the Henry VIII powers, scrutiny and delegated legislation

Sign up here.