The powers of the Lords in Brexit are substantial but unlikely to be used to full effect

Author (Person)
Series Title
Series Details 19.04.18
Publication Date 19/04/2018
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In this commentary feature from Richard Reid the author said that the Prime Minister Theresa May suffered a big defeat in the House of Lords in April 2018 (see below) as peers endorsed requiring ministers to consider customs union membership post-Brexit.

While this showed that the powers of the House of Lords in the Brexit process were substantial, they were unlikely to be used to full effect.

Background information

The European Union (Withdrawal) Bill was introduced into the House of Commons on the 13 July 2017). The Bill if adopted in the UK Parliament would repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.

The European Union (Withdrawal) Bill started its Report Stage in the House of Lords on the 18 April 2018. This offered peers a further opportunity to examine the bill and make changes, as members discussed issues to go back to the House of Commons to consider.

The Bill was considered for six days on report, between 18 April and 8 May 2018.

By the 8 May 2018 the House of Lords had adopted 14 substantive amendments to the Bill.

+ a requirement to report on negotiations to continue in a customs union with the EU
+ enhanced scrutiny procedures for future changes to retained EU law in certain policy areas
+ retention of the EU Charter of Fundamental Rights
+ ability to bring legal cases on the grounds of a failure to comply with the general principles of EU law
+ ministers’ ability to specify when the validity of retained EU law could be challenged in court
+ the threshold for using certain delegated powers to be when it is 'necessary' rather than when the minister considers it 'appropriate'
+ giving Parliament a ‘meaningful vote’ on the outcome of negotiations with the EU
+ parliamentary approval of the mandate for negotiations on the UK’s future relationship with the EU
+ maintaining rights to refugee family reunion
+ continuation of North-South cooperation and the prevention of new border arrangements in Northern Ireland
+ future relationship with EU agencies
+ removing the fixed date of exit day
+ continued participation in the European Economic Area
+ giving parliamentary sifting committees the ability to insist that certain statutory instruments are made using the affirmative procedure.

This led to calls from some Brexit favouring Conservative MPs to call for a fundamental reform of the 'unelected' House of Lords.

Government amendments were made to the Bill in the House of Lords without division covering areas such as:

+ how UK courts should treat the judgments of the Court of Justice of the European Union after exit day
+ domestic legal status of retained EU law
+ further restrictions on the use of delegated powers in the Bill
+ further requirements for ministers to make explanatory statements when exercising delegated powers
+ restructuring the Bill’s provisions relating to the repatriation of powers returning from the EU in areas of devolved competence, so that powers would be returned to the relevant devolved institutions unless specific regulations were made to ring-fence them
+ creating a two-year window post exit in which Francovich damages claims could be brought.

The European Union (Withdrawal) Bill had its third reading in the House of Lords on the 16 May 2018, a chance for members to 'tidy up' the bill and make changes. The government suffered a further defeat on one motion.

Once Lords stages were complete, all Lords changes would go back to the House of Commons for it to consider.

Further information on the defeat on the issue of customs union on the 18 April 2018

Members discussed a change (amendment 1) to keep the UK in the customs union. Those backing it were concerned that leaving the customs union would mean a fall in UK exports and argued it would be difficult for the UK on its own to make trade agreements with super powers.

Members against the amendment responded saying that being inside the EU customs union puts the UK at a disadvantage and supporters of staying in it were making a political point rather than one based on trade. Members for the change said they were trying to get the best Brexit deal for the UK and its future relationship with the EU, not undo Brexit.

The government said it would not accept the change, arguing that staying in the customs union would make the UK bound by the EU’s tariffs and in a worse trade position.

The change went to a vote. Members voted 348 for and 225 against, so the change was made. This was the seventh largest House of Lords vote on record.

The debate also turned to a change (amendment 11) to protect rights in EU retained law after Brexit. Some members were concerned that ministers would be able to change some rights, for example consumer, employment and environmental protections, and said this change would ‘bubble wrap’ and safeguard them.

Members against the change highlighted that some EU regulations don’t achieve their objectives and could be improved after Brexit. The government argued that change would create uncertainty for business and said it would bring its own changes forward on this subject in later report stage days.

The change went to a vote. Members voted 314 for and 217 against, so the change was made.

Subsequent developments

A group of senior anti-Brexit MPs from various political parties from the Liaison Committee of MPs brought forward a non-binding Motion to the House of Commons on the 26 April 2018:

That this House notes that the EU is the UK’s largest export market for goods, accounting for a total of £145bn of exports and £241bn of imports in 2016; further notes the Government’s expressed aim to secure the freest and most frictionless possible trade in goods between the UK and the EU after 29 March 2019; notes the importance of frictionless trade without tariffs, customs or border checks for manufacturers and businesses across the country who trade with the EU; further notes that the free circulation of goods on the island of Ireland is a consequence of the UK’s and Republic of Ireland’s membership of the EU Customs Union; in addition notes the Government’s commitment to (i) in the UK-EU joint report on progress during phase 1 of the Article 50 negotiations, the maintenance of North-South cooperation and the all-island economy on the island of Ireland, (ii) the Belfast Agreement implemented in the Northern Ireland Act 1998 remaining a fundamental principle of public policy and (iii) the continuation of unfettered access for Northern Ireland’s businesses to the whole of the UK internal market; and therefore calls on the Government to include as an objective in negotiations on the future relationship between the UK and the EU the establishment of an effective customs union between the two territories.

However, to forestall this a Downing Street spokesperson on the 23 April 2018 made clear that 'We will not be staying in the customs union or joining a customs union'.

Source Link
Related Links
United Kingdom: Parliament: House of Lords: Library: Library Note: LLN 2018/56 (18.05.18): European Union (Withdrawal) Bill: Summary of Lords Amendments
New Statesman, 09.05.18: Has the House of Lords saved the Remainers’ dream of staying in the single market?
UK: Parliament: House of Lords: Library: Library Briefing, LLN-2018-53 (14.05.18): European Union (Withdrawal) Bill: Lords Report Stage
The Constitution Unit: Blog, 25.05.18: Lords Brexit defeats are forcing MPs to face crucial choices
United Kingdom: Parliament: House of Commons: Briefing Paper, No.8238 (05.06.18): European Union (Withdrawal) Bill 2017-19: Commons consideration of Lords amendments
BBC News, 30.04.18: Brexit: Government defeat in Lords over terms of meaningful vote
LSE Brexit, 27.04.18: The Lords have just raised the bar on the defence of rights and the rule of law in the Brexit process
UK: Parliament: House of Commons: Committees: Liaison Committee
Federal Trust: Blog, 23.04.18: Brexit: Anything could happen in the next half year
In Facts, 09.05.18: Now Lords have bettered Brexit Bill, MPs must do their duty
Institute for Government: Blog, 08.06.17: Election 2017: The Lords' mandate on Brexit
Institute for Government: Blog, 10.05.18: Of course the Lords needs reforming
ESO: Key Source: European Union (Withdrawal) Bill 2017-19
The Guardian, 23.04.18: More Brexit defeats for No 10 in Lords amid reports of cabinet split
BBC News, 23.04.18: EU Withdrawal Bill suffers third Lords defeat on human rights charter
United Kingdom: Parliament: House of Lords: News, 30.01.18: Lords debates EU (Withdrawal) Bill (and periodically updated - latest update: 20.06.18)
BBC News, 01.05.18: House of Lords plays havoc with Brexit bill. Can the Lords stop Brexit?
BBC News, 01.05.18: Brexit: Theresa May plans 'robust' response to Lords defeat
The Telegraph, 01.05.18: [Editorial]: It is not the House of Lord's job to engineer a political crisis over Brexit
The Conversation, 14.05.18: Lords Brexit defeats are forcing MPs to face crucial choices
ESO: In Focus: Brexit - The United Kingdom and the European Union
BBC News, 23.04.18: Government insists UK will leave customs union
BBC News, 19.04.18: Brexit: Senior MPs to force customs union vote
BBC News, 18.04.18: Brexit: Ministers suffer first defeat on EU Withdrawal Bill
The Guardian, 19.04.18: Ministers braced for new vote on customs union after Lords defeat
Politico, 18.04.18: UK government suffers big parliamentary defeat over customs union
In Facts, 19.04.18: Is Theresa May jumping for joy over customs union defeat?

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