REUTERS | Toby Melville

European Union (Withdrawal) Bill: what does the government’s defeat really mean?

The defeat of the government on an amendment to the European Union (Withdrawal) Bill 2017-19 (EU Withdrawal Bill) in the Committee of the Whole House on 13 December 2017 has been portrayed by some as a violent derailment of the government’s plans for Brexit (see Legal update, Parliament amends the European Union (Withdrawal) Bill 2017-19 to require terms of UK’s withdrawal from the EU to be approved by statute). Clearly, in political terms, a defeat on an amendment tabled by a former Conservative Minister and Law Officer joined by a long series of very senior names from all sides of the House, could be seen as a disaster. In politics, of course, some disasters cease to matter after a very short time; and other apparently minor disruptions can prove fatal to Bills and policies. What the political medium-term impact of the defeat will be remains anybody’s guess. But what is the technical legal impact of the change made by the amendment?

Amendment 7 in Dominic Grieve MP’s name was rather modest on its face. It operates on Clause 9 of the EU Withdrawal Bill which presently gives Ministers power to make regulations for the purposes of implementing the withdrawal agreement. Amendment 7 makes the power subject to “the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”

Although this is, for parliamentary tactical reasons, a slightly unusual form for the proposition, once the amendment has been carried into the EU Withdrawal Bill it effectively emasculates Clause 9(1), in the sense that nothing can now be done by regulations under the clause without a prior approval Act; and that Act would be able either to implement the withdrawal agreement itself, or to confirm more focused enabling powers to enable the withdrawal agreement to be implemented. So one way or another, it leaves nothing for Clause 9 to do.

One of the questions that government lawyers are doubtless considering is whether the emasculation of Clause 9 need prevent the achievement in other ways of the policy objectives that it might have been used for.  Simply looking at the EU Withdrawal Bill, the most obvious candidate is Clause 17 which confers the extremely wide power on Ministers of the Crown to “by regulations make such provision as the Minister considers appropriate in consequence of this Act”.   But the difficulty about using that clause to implement the withdrawal agreement is that the very breadth of the power makes it more vulnerable to challenge by way of judicial review. And any challenge by way of judicial review would doubtless argue that, based on the parliamentary history of the EU Withdrawal Bill, it would be unlawful to use the wide power in Clause 17 to do what cannot now be done under clause 9 without an amending Bill. In the present state of the courts’ readiness to look at parliamentary history, and given the express limitation on clause 9, this must be, at the least, a strong argument.

A more promising approach is to look at whether there are other provisions, including existing enabling powers under other Acts, and the remaining tranche of Brexit-related Bills (and possibly instruments under them), that could be used to implement the withdrawal agreement. The breadth of these powers is probably being explored at present, and it may yet prove that a combination of primary and secondary legislation is available to the government to give effect to the withdrawal agreement without being required to satisfy the condition that has been added to Clause 9 by amendment 7.

It is striking that amendment 7 did not, contrary to some public presentations of it, commit the government to a parliamentary Bill approving the withdrawal agreement: what it does is prevent the government from using the presently proposed mechanism for implementing the withdrawal agreement without a Bill. However, given that the withdrawal agreement is already likely to be more of a series of steps, including a number of transitional steps, it may be that the use of a range of powers and provisions becomes both inevitable for practical reasons and, therefore, uncontentious politically.

Two other points on the fallout of the amendment:

  • As a matter of parliamentary procedure, the fact that an amendment has been made in Committee of the Whole House means that the EU Withdrawal Bill will have to have a Report Stage in the House of Commons, which would otherwise not have been required. The programme motion dealing with the EU Withdrawal Bill will doubtless limit the Report Stage, but this both adds a challenge to the government timetable for completing the parliamentary passage of the Bill and, perhaps more importantly, will present its own opportunities for additional amendments.
  • It was already widely expected that even if the EU Withdrawal Bill survived the House of Commons intact it was unlikely to escape the House of Lords unscathed: it is possible that the government will work on the potential impact of the amendment to clause 9 so as to reverse it, or more likely to reverse or modify its impact, in the House of Lords. Whether that is politically credible again remains to be seen.

In summary, the European Union (Withdrawal) Bill is already complicated, arguably unnecessarily so; as a matter of law the government defeat on the amendment to Clause 9 has added to the complexity of the Bill, but it is possible that it will not complicate the Brexit process overall if the limitation on Clause 9 can be circumvented by the use of other mechanisms for implementation of the withdrawal agreement.

Westlaw UK Daniel Greenberg

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