Open Britain Background Briefing: Amendments to the EU Withdrawal Bill

Overview

This briefing, produced by Open Britain on behalf of the APPG on EU Relations, provides an overview of the 15 amendments made by the House of Lords on the EU Withdrawal Bill. The amendments will be debated and voted on in the House of Commons on Tuesday 12 June and Wednesday 13 June 2018. In each case, we provide:

  • The text of the amendment
  • What the amendment would do
  • Points to make in the debate

From the APPG’s perspective, the most important amendments are:

  • Amendments 1&2, which would force the UK Government into presenting a paper on attempts it had undertaken to negotiate keeping the UK in a Customs Union with the EU.
  • Amendment 51, which aims to keep the UK in the European Economic Area and hence participation in the EU’s Single Market.
  • Amendment 19, which would ensure a proper and meaningful parliamentary vote on the final deal which the Governments presents before Parliament.
  • Amendment 37, on removing the fixed exit date from the face of the Bill.

 

As things currently stand, the debate is expected to start at around 12:30 on Tuesday & around 14:00 on Wednesday (all times subject to change). The amendments will be taken in three separate groups. Two of the groups of amendments will be voted on, on the Tuesday with the third group of amendments being taken in the Wednesday session. As things stand at the moment, the amendments covered in this briefing will fall in the groups as follows:

Tuesday 12 June – first group: Amendment 110 (scrutiny of legislation); Amendment 37 (Exit day); Amendment 19 (meaningful vote);   Amendment 52 (challenges to retained EU law);  Amendment 10 (scope of delegated powers);  Amendment 20 (parliamentary mandate future relationship)

Tuesday 12 June – second group: Amendment 25 (Northern Ireland)

Wednesday 13 June group: Amendments 1&2 (Customs Union); Amendment 51 (European Economic Area); Amendment 5 (Charter of Fundamental Rights); Amendment 53 (principles of EU law);  Amendment 4 (enhanced protection for certain areas of EU law); Amendment 3 (EU principles and standards of environmental law); Amendment 24 (child refugees); Amendment 32 (participation in EU agencies).

 

Contents

Amendments 1 & 2: The Customs Union. 3

Amendment 3: Preservation of environmental laws 5

Amendment 4: Enhanced protection of certain areas of EU law.. 6

Amendment 5: Charter of fundamental rights 7

Amendment 10: Scope of Delegated powers 8

Amendment 19: Meaningful parliamentary vote. 9

Amendment 20: Parliamentary approval for mandate of negotiations on the future relationship. 10

Amendment 24: Child refugees 11

Amendment 25: Northern Ireland border 12

Amendment 32: Participation in EU agencies 13

Amendment 37: Exit day. 14

Amendment 51: European Economic Area. 15

Amendment 52: Challenges to retained EU law.. 17

Amendment 53: Challenges to EU law.. 18

Amendment 110: Scrutiny of legislation. 19

Amendments 1 & 2: The Customs Union

Text of the amendment

Amendment 1 

Page 1, line 2, at end insert— “(1) Subsection (2) applies if, and only if, the condition in subsection (3) is met.”

 

Amendment 2 

Page 1, line 3, at end insert— “(3) The condition in this subsection is that, by 31 October 2018, a Minister of the Crown has laid before both Houses of Parliament a statement outlining the steps taken in negotiations under Article 50(2) of the Treaty on European Union to negotiate, as part of the framework for the United Kingdom’s future relationship with the European Union, an arrangement which enables the United Kingdom to continue participating in a customs union with the European Union.”

Note: These two amendments are joint amendments and need to be passed (or rejected) in tandem. If Amendment 1 does not pass, then by default, amendment 2 cannot pass. If amendment 2 does not pass but amendment 1 does then amendment 1 is meaningless.

 

What this amendment would do

This amendment would ensure that the Government would be required to present a statement to the House on steps taken to negotiate an agreement with the EU which would keep the UK in a Customs Union with the EU. The amendment does not ensure that the UK does stay in a Customs Union with the EU but it does force the Government into making every effort to at least attempt to do so. 

 

Points to make in the debate

  • Remaining in the Customs Union is vital for the UK economy, for jobs and, together with remaining in the Single Market, for avoiding a hard border in Northern Ireland. The Government has failed to provide any credible solutions to the issue of the Irish border, putting the negotiations in jeopardy and potentially threatening the Good Friday Agreement.
  • The UK’s current annual goods trade with countries within the Customs Union is £466 billion.[1] Leaving the Customs Union could cost the UK an estimated £25 billion every year until 2030, according to the Brexit Secretary’s Special Adviser, Raoul Ruparel.[2]
  • The cost of new tariffs alone could be at least £4.5 billion per year for UK exporters, according to research conducted by The Independent.[3] Analysis by HMRC suggests new customs checks could increase the cost of imported goods by up to 24%.[4]
  • Leaving the Customs Union could see UK companies having to comply with high levels of new bureaucracy and additional costs. Meeting the EU’s requirements on Rules of Origin alone would add significant extra burdens to businesses in terms of time, effort and money.
  • IT systems will need to be upgraded and improved and the UK will find itself in the position of having to deal with a huge increase in the number of traders making customs declarations, from the current 141,000 to 273,000. This would include approximately 132,000 traders making customs declarations for the first time.
  • The National Audit Office estimates the number of customs declarations per year increasing from 55 million to 255 million if the UK leaves the Customs Union.
  • The UK’s membership of the Customs Union, together with membership of the Single Market, is essential for the maintenance of the currently invisible border between Northern Ireland and the Republic of Ireland. The lack of customs checks and border posts is crucial to the economy of Northern Ireland and the Republic alike, and has profound historical significance.
  • The Irish Foreign Minister has said that leaving the Customs Union is “incompatible” with avoiding a return to a hard border on the island of Ireland.
  • The Government has presented two alternatives to the Customs Union, both of which have already been rejected by the EU and both of which would be costly. The so-called maximum facilitation or “max fac” option has been estimated at costing up to £20bn by the Head of HMRC, Jon Thompson and the second option of a customs partnership would also cost up to £3.4bn.[5]
  • The ‘max fac’ option would look to use technology at the Irish border and would not remove the need for a border, whilst the customs partnership proposal would involve a complicated system, whereby the Government would charge the same external tariff as the EU, to avoid customs checks across the UK-Ireland border and where UK importers would then claw back any differential in tariff between a future UK tariff and an EU tariff later. Open Britain has undertake further research on these two options, which can be found here.
  • Any new trade deals, which the UK could look to negotiate outside of the Customs Union would not make up for the loss of trade which the UK will incur from leaving the EU’s Single Market.[6]

 

Amendment 3: Preservation of environmental laws

Text of the amendment

Insert the following new Clause— “Maintenance of EU environmental principles and standards (1) The Secretary of State must take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment. (2) In particular, the Secretary of State must carry out the activities required by subsections (3) to (5) within the period of six months beginning with the date on which this Act is passed. (3) The Secretary of State must publish proposals for primary legislation to establish a duty on public authorities to apply principles of environmental law established in EU law or on which EU environmental law is based in the exercise of relevant functions after exit day. (4) The Secretary of State must publish proposals for primary legislation to establish an independent body with the purpose of ensuring compliance with environmental law by public authorities. (5) The Secretary of State must publish— (a) a list of statutory functions that can be exercised so as to achieve the objective in subsection (1); and (b) a list of functions currently exercised by EU bodies that require to be retained or replicated in UK law in order to achieve the objective in subsection (1). (6) The Secretary of State must before 1 January 2020 lay before Parliament a Statement of Environmental Policy which sets out how the principles in subsection (7) will be given effect. (7) The principles referred to in subsection (3) include— (a) the precautionary principle as it relates to the environment, (b) the principle of preventive action to avert environmental damage, (c) the principle that environmental damage should as a priority be rectified at source, (d) the polluter pays principle, (e) sustainable development, (f) prudent and rational utilisation of natural resources, (g) public access to environmental information, (h) public participation in environmental decision making, and (i) access to justice in relation to environmental matters. (8) Before complying with subsections (3) to (6) the Secretary of State must consult— (a) each of the devolved administrations; (b) persons appearing to represent the interests of local government; (c) persons appearing to represent environmental interests; (d) farmers and land managers; and (e) such other persons as the Secretary of State thinks appropriate.”

 

What this amendment would do

This aim of this amendment is to ensure that post-Brexit environmental standards in the UK are not diminished.

 

Points to make in the debate

  • The Government needs to build on the EU’s strong environmental record and strong and necessary EU environmental regulations should be transposed into UK law.
  • Brexit should not result in any erosion whatsoever of environmental standards in this country.
  • We need to commit to matching EU regulations on an ongoing basis, for example those that ensure the protection of species and habitats, and the cleanliness of oceans, rivers and lakes.
  • The Government have committed to transposing all existing EU environmental legislation into UK law.[7] This promise must be upheld.

 

Amendment 4: Enhanced protection of certain areas of EU law

Text of the amendment

“Enhanced protection for certain areas of EU law (1) Following the day on which this Act is passed, a Minister of the Crown may not amend, repeal or revoke retained EU law relating to— (a) employment entitlements, rights and protection, (b) equality entitlements, rights and protection, (c) health and safety entitlements, rights and protection, (d) consumer standards, or (e) environmental standards and protection, except by primary legislation, or by subordinate legislation made under any Act of Parliament insofar as this subordinate legislation meets the requirements in subsections (2) to (5). (2) Subordinate legislation which amends, repeals or revokes retained EU law in the areas set out in subsection (1) must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State. (3) Regulations under subsection (2) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament. (4) The enhanced scrutiny procedure provided for by subsection (2) must include a period of consultation with relevant stakeholders. (5) When making regulations relating to the areas of retained EU law set out in subsection (1), whether under this Act or any other Act of Parliament, a Minister of the Crown must— (a) produce an explanatory statement under paragraph 22 of Schedule 7, and (b) include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit.”

 

What this would amendment do

This amendment would remove the provisions outlined in the withdrawal bill known as ‘Henry VIII powers’ in respect to the following areas: employment rights, equality rights, health and safety, consumer standards, environmental standards. This would mean that in those areas a minister would not be able to unilaterally amend existing EU regulations and would need to introduce primary legislation or secondary legislation that has been laid before the house and approved by a resolution to do so.

 

Points to make in the debate

  • Allowing ministers to amend health and safety rules, alter environmental standards, and reverse equality legislation without any parliamentary vote cannot be what ‘Taking Back Control’ was about.
  • We know that Ministers, many of whom campaigned for Brexit are keen to lower existing standards, which we enjoy due to our EU membership, as much as possible. In the past, Liam Fox has called for deregulating the labour market, claiming that “It is too difficult to hire and fire and too expensive to take on new employees.”[8] Boris Johnson, the Foreign Secretary, has called the EU-derived employment regulation as “back-breaking”[9] and Jacob Rees-Mogg has also expressed his dislike for EU-derived employment rights.[10]
  • On health and safety standards, we also know that Jacob Rees-Mogg has no problem with lower standards, famously saying he would be fine with chlorinated chicken.[11] 

 

Amendment 5: Charter of fundamental rights

Text of the amendment

Page 3, line 20, leave out subsections (4) and (5) and insert— “( ) The following provisions of the Charter of Fundamental Rights are not part of domestic law on or after exit day— (a) the Preamble, and (b) Chapter V.”

 

What this amendment would do

This amendment would ensure the transfer of the charter of fundamental rights into UK law with the exception of the charter’s preamble text and Chapter 5. Chapter 5 relates to the right of citizens to stand in EU elections, the right to have EU institutions handle their issues, and the right to freedom of movement among other similar rights.

 

Points to make in the debate

  • This amendment will ensure that all existing rights guaranteed through the Charter of Fundamental Rights are transposed into UK law. This is important, as there should be no diluting of existing rights which we enjoy today, due to Brexit.
  • The charter sets out a number of important legal rights, from the rights of the child in Article 24 to the rights of the elderly in Article 25. It recognises the rights of persons with disabilities in Article 26, the right to healthcare in Article 35 and the protection of the environment in Article 37.[12] All of these rights must be transposed into UK law as part of this bill.
  • None of us in this chamber should have any issue whatsoever with implementing fundamental rights in this country. We should not see Brexit as some kind of race to the bottom.

 

Amendment 10: Scope of Delegated powers

Text of the amendment

Page 5, line 3, leave out “the Minister considers appropriate” and insert “is necessary”

 

What this amendment would do

This amendment is specifically about addressing deficiencies in the bill relating to Henry VIII powers (secondary legislation) and the scope thereof, where the amendment would specifically look to limit the usage of Henry VIII powers.

In case of interest and background use: Open Britain has produced briefings on the use of Henry VIII power in the withdrawal bill in the past, including an in-depth briefing from March 2017 here.

 

Points to make in the debate

  • It is absolutely right that there is full parliamentary scrutiny of all legislation. The principle of parliamentary sovereignty must be adhered to at all times. Ministers cannot try riding roughshod over parliament. That in no way amounts to the principle of “taking back control”.
  • There should be no modification to standards or rights enacted by EU legislation as it is transposed to the UK statute book.
  • The Government should not be allowed to make covert policy changes to existing EU law in the UK through secondary legislation: this would be an abuse of Ministerial and Governmental power.

 

Amendment 19: Meaningful parliamentary vote

 

Text of the amendment

Insert the following new Clause— “Parliamentary approval of the outcome of negotiations with the European Union (1) Without prejudice to any other statutory provision relating to the withdrawal agreement, Her Majesty’s Government may conclude such an agreement only if a draft has been— (a) approved by a resolution of the House of Commons, and (b) subject to the consideration of a motion in the House of Lords. (2) So far as practicable, a Minister of the Crown must make arrangements for the resolution provided for in subsection (1)(a) to be debated and voted on before the European Parliament has debated and voted on the draft withdrawal agreement. (3) Her Majesty’s Government may implement a withdrawal agreement only if Parliament has approved the withdrawal agreement and any transitional measures agreed within or alongside it by an Act of Parliament. (4) Subsection (5) applies in each case that any of the conditions in subsections (6) to (8) is met. (5) Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been— (a) approved by a resolution of the House of Commons, and (b) subject to the consideration of a motion in the House of Lords. (6) The condition in this subsection is that the House of Commons has not approved the resolution required under subsection (1)(a) by 30 November 2018. (7) The condition in this subsection is that the Act of Parliament required under subsection (3) has not received Royal Assent by 31 January 2019. (8) The condition in this subsection is that no withdrawal agreement has been reached between the United Kingdom and the European Union by 28 February 2019. (9) In this section, “withdrawal agreement” means an agreement (whether or not ratified) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU and the framework for the United Kingdom’s future relationship with the European Union.”

 

What this amendment would do

This amendment would ensure that the Government would only be able to implement any withdrawal and transition agreement with the EU27 if Parliament had actually agreed to this. Additionally, the amendment would ensure, more generally, that Government would be bound to follow any decision by Parliament as regards the negotiations. This would ensure power resting with Parliament and would ensure Parliament could not be over-ruled by Government.

 

Points to make in the debate

  • Parliament must have its say on the Brexit process. The principle of parliamentary sovereignty must be upheld and it should only be when Parliament is content that any agreement with the EU is signed. The Government cannot think it can steamroller the Brexit process.
  • It is only right and proper that Parliament holds the strings when it comes to our country’s relationship with our largest and most important partner. There should be full scrutiny of the negotiations and this amendment will enable the legislature – representing the will of the people – to play its rightful role.
  • Leading Brexiteers, including the Brexit Secretary[13] have always maintained that Brexit was about parliamentary sovereignty – and this principle should now be upheld.

 

Amendment 20: Parliamentary approval for mandate of negotiations on the future relationship

Text of the amendment

Page 7, line 7, after “to” insert— “(a) approval by Parliament of a mandate for negotiations about the United Kingdom’s future relationship with the EU; and (b)”

 

What this amendment would do

This amendment helps give effect to a meaningful vote by ensuring that no minister could exercise Henry VIII powers unless the negotiations about the UK’s future relationship with the EU were approved by Parliament.

 

Points to make in the debate

  • This provision further strengthens our call for a meaningful vote on the final deal by making the use of Henry VIII powers contingent on the future relationship negotiations being approved by Parliament.
  • It is only right that Parliament has a say on the process of Brexit and there can be no use of secondary legislation by Ministers unless Parliament has already given its approval of a mandate for the future relationship.
  • Leading Brexiteers, including the Brexit Secretary[14] have always maintained that Brexit was about parliamentary sovereignty – and this principle should now be upheld.

 

Amendment 24: Child refugees

Text of the amendment

Insert the following new Clause— “Maintenance of refugee family unity within Europe (1) A Minister of the Crown must make appropriate arrangements with the aim of preserving specified effects in the United Kingdom of Regulation (EU) No. 604/2013 (the “Dublin Regulation”), including through negotiations with the EU. (2) “Specified effects” under subsection (1) are those provisions, and associated rights and obligations, that allow for those seeking asylum, including unaccompanied minors, adults and children, to join a family member, sibling or relative in the United Kingdom. (3) Within six months of the passing of this Act, and then every six months thereafter, a Minister of the Crown must report to Parliament on progress made in negotiations to secure the continuation of reciprocal arrangements between the United Kingdom and member States as they relate to subsection (1).”

 

What this amendment would do

This amendment would make it Government policy to negotiate to maintain the existing arrangements of the rights of child refugees to join family members in other EU member states and for child refugees in other EU member states to come to the UK to join family members here.

 

Points to make in the debate

  • Brexit should not allow child refugees to be stopped from uniting or reuniting with family members elsewhere. This includes the rights of child refugees in this country to be reunited with family members elsewhere in the EU and for child refugees elsewhere in the EU to come here.
  • Families, especially refugee families, should never be stopped from reuniting and Brexit cannot turn us into a cold-hearted country which fails to offer a safe haven from those feeling persecution.
  • As Lord Dubs, the refugee campaigner has said, “If the government is serious about righting its wrongs – and not just looking for an easy sticking plaster – it should accept my amendment so that families who have fled war can be together. No one, least of all young people and children, should be living in dangerous, dirty camps or on the streets when their family in Britain is waiting to house them.”[15]

 

Amendment 25: Northern Ireland border

Text of the amendment

Insert the following new Clause— “Continuation of North-South co-operation and the prevention of new border arrangements (1) In exercising any of the powers under this Act, a Minister of the Crown or devolved authority must— (a) act in a way that is compatible with the terms of the Northern Ireland Act 1998, and (b) have due regard to the joint report from the negotiators of the EU and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union. (2) Nothing in section 7, 8, 9 or 17 of this Act authorises regulations which— (a) diminish any form of North-South co-operation across the full range of political, economic, security, societal and agricultural contexts and frameworks of co-operation, including the continued operation of the North-South implementation bodies, or (b) create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature— (i) physical infrastructure, including border posts, (ii) a requirement for customs or regulatory compliance checks, (iii) a requirement for security checks, (iv) random checks on goods vehicles, or (v) any other checks and controls, that did not exist before exit day and are not subject to an agreement between Her Majesty’s Government and the Government of Ireland.”

 

What this amendment would do

This would ensure that the Government would have to negotiate an agreement which would ensure that there would be no changes to existing North-South co-operation on the island of Ireland. The amendment would also ensure that no physical infrastructure on the border or any kind of customs checks could come about due to Brexit.  

 

Points to make in the debate

  • This amendment would ensure that there could be no hard border in Northern Ireland. This is exceptionally important for North-South co-operation as well as the preservation of the Good Friday Agreement.
  • The Government’s decision to leave the Single Market and the Customs Union, necessitates checks on the Northern Irish-Irish border. Nobody voted for this and leading Brexiteers such as the then Northern Ireland Secretary, Theresa Villiers noted in early 2016 that Brexit would not lead to new border checks being introduced. [16]
  • Almost 24 months after the Brexit vote, the Government have still not been able to present a viable plan which would avoid a hard border and which would be acceptable to the EU.
  • Latest opinion polls from Northern Ireland show that 61% of the population want to stay in both the Single Market and Customs Union. Doing so would mean no “hard border”.
  • Polls also show that if presented with the opportunity, 69% of the population of Northern Ireland would vote to stay in the EU, a further argument for a people’s vote on Brexit.
  • It is tantamount for the continuation of current arrangements between the UK and Northern Ireland that this amendment be passed.

 

Amendment 32: Participation in EU agencies

Text of the amendment

Insert the following new Clause— “Future interaction with the law and agencies of the EU Nothing in this Act shall prevent the United Kingdom from— (a) replicating in domestic law any EU law made on or after exit day, or (b) continuing to participate in, or have a formal relationship with, the agencies of the European Union after exit day.”

 

What this amendment would do

This amendment would seek to ensure a) the possibility of replicating EU law in domestic law post-Brexit and b) the continued participation of the UK in EU agencies post-Brexit.   

 

Points to make in the debate

  • EU agencies contain crucial amounts of expertise and knowledge, from which we benefit today, ranging from medicines, to chemicals to banking issues. Replicating the work of these agencies would be costly and it would also be time-consuming to set them up. It is crucial that we have a relationship with the European Union that allows us to continue to participate in these agencies post-Brexit.
  • The Government need to come clean about the implications for UK businesses and consumers of being outside EU agencies such as the Chemicals Agency and the Medicines Agency.
  • We already know that thanks to Brexit, the European Medicines Agency (EMA) and the European banking Authority, both based in the UK, are having to relocate. Thanks to Brexit, the cost of relocating the EMA is expected to be around £520m[17] – another hidden Brexit cost.
  • There are currently 44 EU agencies which we currently benefit from, due to our membership of the EU.[18] Has the Government calculated the cost to setting up UK-only versions of all of these?

 

Amendment 37: Exit day

Text of the amendment

Page 10, line 40, leave out from “means” to end of line 41 and insert “such day as a Minister of the Crown may by regulations appoint (and see subsection (2));”

 

What this amendment would do

This amendment would mean that it would be for a minister to decide when “Brexit day” would be as opposed to having a fixed day of 29 March 2019. This would provide ministers with more flexibility, where if the article 50 negotiations were extended, a fixed date would not tie the Government’s hands in the negotiations.    

 

Points to make in the debate

  • It is important that there is no fixed date as regards Brexit until we know where we are actually going.
  • It is perfectly possible that the Government decide or require an extension to the Article 50 negotiations and tying our hands with a fixed date on Brexit makes no sense whatsoever.

 

Amendment 51: European Economic Area

Text of the amendment

Page 15, line 21, at end insert— “(2B) But none of the remaining provisions may come into force until it is a negotiating objective of the Government to ensure that an international agreement has been made which enables the United Kingdom to continue to participate in the European Economic Area after exit day. (2C) Regulations under this Act may not repeal or amend subsection (2B).”

 

What this amendment would do

This amendment would ensure that it would become a negotiating objective of the Government to keep the UK in the European Economic Area (EEA) post Brexit. The treaty of the European Economic Area can be found here. The European Economic Area is an extension of the four freedoms of the Single Market (goods, services, capital and people) to Norway, Iceland and Liechtenstein.

 

Points to make in the debate

  • The EEA is a free trade agreement between the EU members and three of the four members of the European Free Trade Area - EFTA (Norway, Iceland and Liechtenstein) and extends the four freedoms of the Single Market (free movement of goods, people, services and capital) to these countries. The fourth member of EFTA (Switzerland), has its own bilateral treaty with the EU.[19]
  • As an EU member, the UK has participated in the EEA since it was established in 1994. The EEA is closely aligned, but not exactly the same as the EU Single Market. It excludes the Common Agricultural Policy & Common Fisheries Policy and, the arbitration mechanism for the three non-EU members of the EEA is not the European Court of Justice, but the EFTA Court.
  • Staying in the EEA has the advantage of keeping the UK in sync with current EU Single Market rules and according to the assessment by the House of Commons Exiting the EU Committee would be the least economically disruptive form of Brexit on offer.[20]
  • From an institutional point of view, the EEA Council, constituting of one member from each of the 31 members’ Government as well as representative of the European Commission, sets the political direction of the EEA. An EEA Joint Committee, is responsible for the good functioning of the agreement. Article 99 of the EEA agreement explains how EEA members are consulted when it comes to drafting internal market legislation by the European Commission: The Commission consults with experts from EEA members and EEA members are consulted through the EEA joint committee when new single market legislation is being proposed.    
  • Articles 112 and 113 of the EEA Agreement allows safeguard measures to apply in circumstances of ‘economic, environmental or societal difficulties’. Liechtenstein invoked Articles 112 and 113 when they joined and via dialogue with the EU they secured a protocol for quotas on free movement.
  • Article 127 of the EEA notes that any party to the agreement may withdraw from the agreement, provided that it provides 12 months’ notice. The Government have continuously argued that the UK will leave the Single Market when it leaves the EU a notification about leaving the EEA has never been given. The question of the UK’s participation in the EEA agreement was not a feature of the referendum ballot paper in 2016. There has been no formal decision by Parliament to leave it and we believe it is therefore a matter that Parliament needs to determine.
  • Staying in the EEA, as well as remaining in the Customs Union, would help to avoid a hard border in Northern Ireland.

 

Amendment 52: Challenges to retained EU law

Text of the amendment

Page 16, leave out lines 11 to 15

 

What this amendment would do

The amendment would remove a section of the bill which would allow ministers to use Henry VIII powers/secondary legislation to establish when individuals could challenge the validity of retained EU law after exit day.[21]

 

Points to make in the debate

  • It is absolutely right that there is full parliamentary scrutiny of all legislation. The principle of parliamentary sovereignty must be adhered to at all times. Ministers cannot try riding roughshod over parliament. That in no way amounts to the principle of “taking back control”.
  • It cannot be for Ministers to decide, how, when and whether individuals should be allowed to challenge the validity of retained EU law after Brexit day – this should be for Parliament to do.

 

Amendment 53: Challenges to EU law

Text of the amendment

Page 16, line 21, leave out paragraph 3

 

What this amendment would do

This amendment would allow legal challenges to domestic law if they fail to comply with the general principles of EU law. This reflects the fact that the bill currently transfers general principles of EU law into domestic law as long as they are recognised by the European Court of Justice (ECJ) before exit day.[22]

 

Points to make in the debate

  • It is clear that this amendment should pass. There should be no weakening of existing laws in the UK which have derived from EU law and if this is the case, then citizens should be allowed to bring challenges accordingly.
  • Government should not be allowed to change existing standards and principles in this country by stealth. If UK citizens believe that changes are being to UK laws, which would put them out of sync with general principles of EU law, then they should be able to react accordingly.

 

Amendment 110: Scrutiny of legislation

Text of the amendment

Page 44, line 35, leave out from beginning to end of line 20 on page 45 and insert— “Parliamentary committees to sift regulations made under section 7, 8, 9 or 17 3 (1) This paragraph applies if a Minister of the Crown— (a) proposes to make a statutory instrument, whether under this Act or any other Act of Parliament, to which paragraph 1(3), 6(3), 7(3), or 11 applies or which has the same purpose as an instrument to which those paragraphs apply, and (b) is of the opinion that the instrument should be subject to annulment in pursuance of a resolution of either House of Parliament (“the negative procedure”). (2) Before making the instrument, the Minister must lay before both Houses of Parliament a draft of the instrument together with a memorandum setting out the reasons for the Minister’s opinion that the instrument should be subject to the negative procedure. (3) The negative procedure applies unless within the relevant period either House of Parliament requires the affirmative procedure to apply, in which case the affirmative procedure applies. (4) A House of Parliament is taken to have required the affirmative procedure to apply within the relevant period if— (a) a committee of the House charged with reporting on the instrument has recommended, within the period of 10 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply, and (b) that House has not by resolution rejected the recommendation within a period of 5 sitting days beginning with the first sitting day after the day on which the recommendation is made, or (c) irrespective of the committee reporting on the instrument, that House has resolved, within the period of 15 sitting days beginning with the first sitting day after the day on which the draft instrument was laid before the House, that the affirmative procedure should apply to the instrument. (5) For the purposes of this paragraph— (a) where an instrument is subject to the affirmative procedure, it may not be made unless the draft of the instrument laid under sub-paragraph (2) has been approved by a resolution of each House of Parliament, (b) “sitting day” means, in respect of either House, a day on which that House sits. (6) Nothing in this paragraph prevents a Minister of the Crown from deciding, at any time before a statutory instrument mentioned in subparagraph (1)(a) is made, that another procedure should apply in relation to the instrument.”

 

What this amendment would do

This amendment would strengthen the role of parliament when it comes to the use of statutory instruments to amend retained EU law, by giving greater powers to the Sifting Committee, enabling it to assess all statutory instruments related to EU law.[23]

 

Points to make in the debate

  • It is absolutely right that there is full parliamentary scrutiny of all legislation. The principle of parliamentary sovereignty must be adhered to at all times. Ministers cannot try riding roughshod over parliament. That in no way amounts to the principle of “taking back control”.
  • Parliament should play a key role in the incorporation of any EU legislation into UK law and it should be Parliament, as opposed to Government, which should be playing this role.

 

[1] https://www.oxera.com/Latest-Thinking/Publications/Reports/2017/Brexit-ports.aspx#_ftn1

[2] https://www.theguardian.com/politics/2016/oct/11/government-adviser-leaving-eu-customs-union-uk-25bn

[3] http://www.independent.co.uk/news/business/news/brexit-latest-cost-uk-leaving-eu-without-trade-deal-exports-negotiations-david-davis-a7325326.html

[4] https://www.thetimes.co.uk/edition/business/brexit-customs-checks-could-land-uk-with-24-price-rise-q7d8sslnl

[5] https://www.independent.co.uk/news/uk/politics/brexit-latest-uk-eu-customs-model-cost-business-trade-hmrc-jon-thompson-max-fac-20-billion-a8365576.html

[6] https://www.theguardian.com/commentisfree/2018/feb/28/liam-fox-trade-deals-britain-brexit-single-market-customs-union

[7] https://resource.co/article/government-commits-protecting-whole-body-eu-environmental-laws-11769

[8] https://www.ft.com/content/2ee5b8de-5c8d-11e1-8f1f-00144feabdc0

[9] http://www.express.co.uk/news/politics/495970/Boris-Johnson-says-Britain-could-have-good-future-outside-European-Union

[10]  https://www.youtube.com/watch?v=SKAcdD48B6U

[11] http://www.independent.co.uk/news/uk/politics/jacob-rees-mogg-brexit-chlorinated-chicken-a7977621.html

[12] For all information on the Charter of Fundamental Rights, please see here: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN

[13] https://www.conservativehome.com/platform/2016/02/david-davis-britain-would-be-better-off-out-of-the-eu-and-heres-why.html

[14] https://www.conservativehome.com/platform/2016/02/david-davis-britain-would-be-better-off-out-of-the-eu-and-heres-why.html

[15] https://www.theguardian.com/politics/2018/apr/29/lord-dubs-tables-brexit-bill-amendment-to-give-young-refugees-sanctuary

[16] https://www.ft.com/content/858fa0f0-0184-11e6-ac98-3c15a1aa2e62

[17] https://www.independent.co.uk/news/uk/politics/brexit-latest-news-european-medicines-agency-move-london-eu-cost-bill-520-million-nhs-europe-a7873226.html

[18] https://euagencies.eu/sites/default/files/eu_agencies_brochure_2017.pdf

[19] All references to the EEA agreement taken from the main text of the EEA, here: http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf

[20] https://www.parliament.uk/documents/commons-committees/Exiting-the-European-Union/17-19/Cross-Whitehall-briefing/EU-Exit-Analysis-Cross-Whitehall-Briefing.pdf

[21] For more information see the see the explainer by the Institute for Government on the Lord Beith amendment here: https://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-and-debates

[22] For more information see the explainer by the Institute for Government on the Lord Lisvane amendment here https://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-and-debates

[23] For more information, see the explainer by the Institute for Government on the Lord Lisvane “scrutiny” amendment https://www.instituteforgovernment.org.uk/explainers/eu-withdrawal-bill-amendments-and-debates