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07 Jan 2020

Constitution

Relationship with the EU

Withdrawal Agreement Bill

Almost exactly a year since Theresa May went down to the biggest ever defeat in parliamentary history on her first attempt to pass her withdrawal deal, the Johnson administration is bringing back its Withdrawal Agreement Bill (WAB) to the Commons, confident that his working majority of 87 will secure its passage.

His commitment to ‘get Brexit done’ by 31 January means it will be rushed through at breakneck speed.

This week it will complete all its remaining Commons stages: two days for Committee of the Whole House and then a day for report and third reading. Then it’s off to the Lords.

Normally the Lords would take their time considering such a major piece of constitutional legislation – but they will be cowed by the fact that this was the central plank in the government’s manifesto.

In line with the Salisbury convention, the Lords do not stand in the way of a government meeting its manifesto commitments.

They may try to test some of the provisions in the WAB, but ultimately they will not stand in the way of the UK leaving with this deal at the end of the month.

The speed at which Parliament is being asked to pass this legislation is unprecedented. Other EU treaties have taken both more sitting days but also taken far longer, giving MPs and peers much longer to think about the content.

For example, the fewest sitting days was taken for the Treaty of Nice, which passed in 11 sitting days – but there were 250 days between its first reading and Royal Assent. The most controversial treaty – Maastricht – took 41 sitting days and its total consideration was well over a year.

Neither of these had as profound an effect as the withdrawal treaty.

The government could argue that MPs have already had sight of the bill – in the last Parliament.

But it has made some quite significant changes to the legislation: chopping out the provisions which would have given Parliament a vote on both the mandate for the trade negotiations and the final deal; removing the (admittedly weak) protections on workers’ rights; replacing the need for a vote on extension of the implementation period with a prohibition on seeking extension; and what has been criticised as a weakening of commitments on unaccompanied children seeking asylum.

They have also added a provision to allow ministers to specify areas where lower courts can reinterpret EU law, possibly opening the way up to greater divergence.

The fact that the government has been able to pull back on these commitments is the first indication of the difference that governing with a majority makes. It has no need any more to appeal to Labour MPs or sceptics on its own side.

It will also be able to resist any amendments. But that has not deterred MPs from putting them down anyway.

The amendments so far show the areas of concern.

A new clause tabled by Green MP Caroline Lucas, but with support from other opposition parties, attempts to restore parliamentary oversight of the future relationship negotiations.

Nationalist MPs and the Northern Irish parties have tabled amendments to give the devolved governments a critical role in the negotiations.

On the objectives for those negotiations, the Labour frontbench has tabled amendments which seek a close relationship with the EU and make a two-year extension the default (which UK legislation could not do without agreement from the EU).

The Liberal Democrats have also tabled amendments on the negotiating objectives for the security partnership.

Former Brexit Secretary David Davis’s amendment seems to hanker after the sort of ‘cake and eat it’ mutual recognition deal that the May government floated at Florence but was roundly rejected by the EU.

Other amendments seek to extend UK participation in Erasmus and the new EU research programme Horizon Europe.

Labour, the SNP and the Liberal Democrats have tabled amendments on the rights of EU citizens.

These seek to ensure that EU citizens who have not got settled status by the deadline maintain their rights to apply, rather than lose them. They also add an appeal process and try to bolster the independence of the Independent Monitoring Authority.

There were a lot of amendments on citizens’ rights in October, and sabre rattling from Guy Verhofstadt from the European Parliament (with a threat that it might not ratify the agreement), and the government may regret not thinking twice how it proposes to deal with people who fail to exercise their rights in time.

If any issue tempts Tories to rebel, it may be this.

There are also a host of amendments from Northern Irish parties on the operation of the Northern Ireland protocol. One on ensuring ‘unfettered access’ for Northern Irish goods to the GB market has the support of all the NI parties who take seats at Westminster.

Given the assurances that the Prime Minister has given that there will be no additional paperwork (contradicting what both the Brexit secretary and the Secretary of State for Northern Ireland told Parliamentary committees before dissolution), this could prove the hardest of amendments for the government to resist.

There is one amendment the government might accept. It already had a clause in the bill asserting parliamentary sovereignty, included at the behest of the ERG.

There is now an ERG amendment down in the name of Mark Francois MP to require Big Ben to chime at 11.00pm on 31 January to mark the end of UK membership of the EU.

Once the bill completes its Commons stage it will be off to the Lords. The Lords will in particular scrutinise the sweeping delegated powers the government proposes to take in this legislation. This was a big battleground in the 2018 EU Withdrawal Act.

But if the government resists their changes when they come back to the Commons for so-called ‘ping pong’, the House of Lords is very unlikely to insist.

By Jill Rutter, Senior Research Fellow at the UK in a Changing Europe.

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