The European Union (Withdrawal Agreement) Bill ("WAB") is due to be debated further in Parliament over the coming weeks. Although its passage through the House of Commons is likely to be eased considerably by the new government's substantial majority, it still has to pass the House of Lords – which may be more inclined to amend it when it considers the legislation next week. We highlight below two aspects of the Bill which may receive particular scrutiny in the Lords, and may mean that it is not quite ready to be "popped in the microwave", as the Prime Minister might put it.
Parliament's role in shaping the EU-UK future relationship
The new government has removed from the WAB the right of Parliament to have a say in relation to the negotiations on the future relationship with the EU, and this may prove contentious.
CHANGES MADE IN THE DECEMBER VERSION OF THE WAB
The October 2019 version of the WAB contained an obligation on the government to lay a statement before Parliament on its objectives for the future relationship with the EU, which had to be approved by a motion of the House of Commons before negotiations could commence. The government was then obliged to pursue those objectives in its negotiations with the EU and to make regular progress reports to Parliament. However, in the December 2019 version of the WAB, all these provisions have been removed.
The House of Lords may take the view that provisions should be added which give Parliament (and potentially also the devolved administrations of the UK) a more clearly defined and meaningful role. It might, for example, put forward amendments which reflect the government's own proposals on the role of Parliament in free trade agreements after Brexit, which state that "[a]t the start of negotiations, the Government will publish its Outline Approach which […] will include our negotiating objectives and be accompanied by a scoping assessment which will be informed by economic modelling, setting out the potential economic impacts of any agreement. We will ensure that Parliament has a role scrutinising these documents so that we can take its views into account before commencing negotiations." The same document also commits the government to involving Parliamentary committees in detailed scrutiny of proposed free trade agreements and to following the Constitutional Reform and Governance Act procedures in relation to treaty ratification. Amendments along these lines were tabled in the Commons but were not successful.
PARLIAMENTARY SCRUTINY OF SECONDARY LEGISLATION
The House of Lords may well also have concerns about the extensive powers accorded to Ministers under the WAB to make such secondary legislation as they consider "appropriate" for various purposes connected with the Withdrawal Agreement. Under the EU (Withdrawal) Agreement 2018, similar provisions relating to secondary legislation were more tightly defined in terms of their scope, with a view to limiting the government's discretion. Again, a number of amendments to this effect were tabled in the Commons but were not successful. This article highlights a number of problematic examples of statutory instruments made under the 2018 Act, some of which only came to light because of the higher level of scrutiny provided for in that legislation.
In an unusual move, parties from across the political spectrum in Northern Ireland have met with business leaders in the province and agreed to put their names to cross-party amendments to the WAB. In broad terms, these amendments sought to constrain the government's freedom of action in relation to matters which might introduce additional trade friction between Northern Ireland and the rest of the UK. They included an amendment which would have prevented additional administrative costs resulting from the arrangements for Northern Ireland being recouped from businesses.
Although none of these amendments was successful in the Commons, they could be reintroduced in the House of Lords, both on the basis that there appears to be broad support for them in Northern Ireland, and out of concern that failure to address such issues could, over time, undermine the peace process. The prospects for any such amendments may have been improved by the recently announced draft agreement to restore power-sharing arrangements in Northern Ireland. This contains a commitment by the UK government to legislate for "unfettered trade" between the province and the UK mainland (although the government could argue that changes to the WAB are unnecessary on the basis that this commitment can be implemented in subsequent legislation).
These are not the only aspects of the WAB that the Lords may wish to amend; for example, press reports suggest that amendments may well be tabled to reinstate a commitment on child refugees which was in the October version of the WAB but has now been removed.
What happens if the House of Lords amends the WAB?
If the House of Lords amends the WAB, the legislation will then need to return to the Commons for consideration of the changes made. The government could use its majority to overturn them and there is a convention that the Lords will not subject a Bill which carries out a manifesto commitment (as is the case here) to "wrecking amendments" which effectively block that commitment from being implemented. However amendments on the above issues would not amount to an outright rejection of the Bill, nor would they necessarily defeat the government's manifesto intention of "getting Brexit done." For example, it can be argued that amendments designed to enhance Parliamentary scrutiny are consistent with the desire to "take back control of our laws" manifested in the referendum outcome (which the government claims to be seeking to deliver). Similarly, as regards Northern Ireland, it can be argued that the suggested amendments reflect statements made by the Prime Minister during the election campaign.
That said, the government could argue that if the Lords continues to amend the Bill in the face of Commons objections, it will mean that the legislation cannot pass in time to avoid a no deal Brexit on 31 January (when the current extension of the period for negotiating withdrawal under Article 50 expires) – and that as such, the Lords is effectively blocking a manifesto commitment. This may make the Lords wary of a full-blown confrontation with the government over the WAB if the Commons overturns any changes; indeed, some Lords may argue that in the circumstances, the WAB should be passed without amendment.
WHY THE PARLIAMENT ACTS DON'T HELP
Another way that the government can overcome a legislative impasse involving the House of Lords is to use the Parliament Acts. However, it can only do so by reintroducing the "blocked" legislation in a new session of Parliament. This effectively rules out the use of that procedure in the case of the WAB owing to the timing constraints imposed by the government's objective of securing an exit from the European Union by 31 January this year.
Brexit: more like preparing a seven course banquet, not a ready meal
More generally, the prospect of Lords amendments to the WAB highlights how "getting Brexit done" is very unlikely to be straightforward. Passing the WAB is just the end of the first stage; the government must then negotiate the future relationship at the same time as it tries to demonstrate that it is addressing domestic issues which have been starved of attention by the focus on Brexit. Meanwhile, it has also signalled a desire to reshape Whitehall and to revisit the UK's constitutional settlement. But even a government with a comfortable majority is likely to find dealing with all these issues simultaneously a major challenge – and one which may be exacerbated by having to deal with developments over which it has less control, such as the current crisis in relations between Iran and the US.