The European Union (Withdrawal) Bill, which has just concluded its Committee stage in the House of Commons, is probably the most important constitutional legislation laid before Parliament since the European Communities Act (ECA) 1972.
The Bill, which will be subjected to detailed debate and scrutiny by the House of Lords in the New Year, has three key objectives: namely to repeal the ECA 1972; to convert the body of EU law in to UK law on Brexit day, by creating a new species of UK legislation called ‘retained EU law; and, where necessary, correct UK law to deliver a functioning statute book.
The passage of the EU Withdrawal Bill through the Commons to the conclusion of the Committee Stage has been less than straight forward – and this is even before the Bill is debated by peers in the House of Lords. With only a small majority in the Commons, the government has been forced to play a strategic game (perhaps better described as guerrilla warfare) throughout the parliamentary process in order to avoid defeat on crucial and sometimes controversial amendments.
For example at the Committee stage, facing a potential defeat on an amendment which proposed that the Charter of Fundamental Rights would continue to apply to retained EU law after Brexit, the government was forced to make an 11th hour concession – to review the way human rights would be affected by changes to the Charter caused by Brexit.
This concession illustrates how the government is ‘firefighting’ in order to manage the parliamentary process. This enables the substance of the Bill to go through while accepting that, because of the lack of a parliamentary majority, it will need to compromise on key amendments.
The government’s strategy is therefore one which can be categorised thus: appear to be constructive and engaged and offer concessions, rather than lose a parliamentary vote and create a ‘domino effect’ of parliamentary defeats. Indeed, the government’s concession on its own amendment to enshrine Brexit day in it law, in the wake of opposition from backbenchers, is yet another example of this strategy.
In large part, this strategy is a response to an emboldened House of Commons. On the passage of the EU Withdrawal Bill the government, relying on the support of the DUP, must also acknowledge the views of the whole House of Commons. Even when the Bill concludes its passage in the Commons, that will not be the end of the government’s problems. Amendments in the Lords, where the government has no majority, may prove equally difficult. This could prevent the government moving rapidly towards the ‘end game’ for the Bill.
The government’s problems with the Brexit process, which are Parliament’s gain, are well illustrated by the question of Parliament being offered a meaningful vote on the final deal that the UK agrees with the EU. Dominic Grieve, the former Attorney General, proposed an amendment, approved by the Commons by 4 votes, which legally guarantees Parliament a vote on the terms of the final deal before Brexit day.
In addition, the amendment to the Bill precludes the government from using the so-called Henry VIII powers to implement the Brexit deal. It must now do so by an Act of Parliament. The government could seek to overturn the amendment at the Report Stage of the Bill in the New Year, but could invite criticism that it is ignoring the will of the Commons.
Constitutionally this amendment is significant because, not only does it provide for a formal vote on the deal, but it also enshrines a parliamentary right of democratic oversight over the final deal. It will be recalled that the government has been ambiguous about Parliament voting on the final deal since triggering of Article 50, especially in relation to the timing of such a vote and its consequences.
Strategically, the passage of this amendment is important because it illustrates that the House of Commons is able to exercise real control and influence over the Brexit process. The government may have previously promised Parliament would have a vote on the deal. But MPs, perhaps mindful the government’s parliamentary strategy has been one of imprecision on the timing of such a vote, and increasingly encouraged by their ability to extract concessions, did not consider this sufficient. Therefore, they insisted on a specific legal guarantee within the Bill itself.
The vote by the Commons was taken despite the government announcing that it will bring forward primary legislation, the ‘Withdrawal Agreement and Implementation Bill’, to implement the withdrawal agreement and any ‘implementation’ period. This Bill, specifically referred to in the UK-EU joint report on progress during phase 1 of negotiations, will offer MPs an opportunity to have a vote.
However, a majority of MPs were clearly unconvinced that voting on this Bill would constitute a ‘meaningful vote’ on the final deal. Rather, it would merely constitute a ‘take it or leave it vote’ on what the government had negotiated with no prospect of change.
The government has seen off hundreds of attempts to amend the EU Withdrawal Bill and only one, which will give Parliament a guaranteed vote on the final Brexit deal, has been successful. This may be seen as good going for a government with no majority.
However, it would also be inaccurate to underestimate the significance of this defeat. Not least because this defeat is on parts of the Bill where there are genuine constitutional implications for the UK and the future of citizen’s rights.
Delivering Brexit was never going to be easy without a parliamentary majority. The House of Commons has injected a new institutional dynamic in to the Brexit process which helps to further define what ‘taking back control’ means.
Yes, the UK is leaving the EU and parliament is in the process of giving effect to the referendum result. But, at this stage of the process, parliament has made it clear that ultimately Parliament, not ministers, will have the final word.
By Adam Cygan, Research leader at The UK in a Changing Europe and Professor of EU Law at the University of Leicester.