Last week, the EU Withdrawal Bill returned to the Commons, so MPs could scrutinise and vote on amendments made to it by the House of Lords. The Bill survived its passage in the House of Commons last year relatively intact, with only one amendment carried against the Government. Things were different, however, in the Lords, where the Government was defeated on 15 substantial amendments.
The European Union (Withdrawal) Bill (EUWB) is the flagship Brexit legislation introduced to Parliament on 13 July 2017. Arcane and convoluted scarcely grasps the nature of this piece of legislation, especially after passage through both Houses, with a concomitant accretion of amendments, reorderings and changes in the numbering of clauses. It is, however, worth stressing that the purpose of the EUWB is not to decide the terms of Brexit (currently being negotiated in Brussels), but to ensure it can be implemented effectively in domestic law and that legal certainty, essential for all, is maintained. Taking time to examine this legislation properly is not blocking or hampering Brexit. If it is not thought through carefully, there will be damage to the economy, society and security, not to mention to rights, freedom and democracy. Regrettable then, that consideration of these Lords’ amendments was constricted into only 12 hours of Commons time. This left almost no time for debate on the substance of most amendments.
I find it easiest to group the Lords’ amendments under 6 (loosely defined) headings: the meaningful vote for Parliament; those concerning rights (especially the EU Charter); the issue of amending/repealing retained EU Law and further parliamentary scrutiny; amendments which concerned the UK’s relationship with the EU (eg whether the possibility of a customs union should be left open); those concerning Northern Ireland; and finally, whether the UK’s exit date should be fixed in legislation.
This blog focusses on the fundamental rights implications of the EUWB amendments. However, the ‘Meaningful vote’ for Parliament was considered by many to be the most consequential of the amendments, as it was designed to strengthen Parliament’s role in the Brexit negotiations. In the event, despite much hyping of a meaningful vote, a government defeat was avoided on this issue, because Tory rebels accepted last minute personal assurances from the Prime Minister – assurances whose efficacy barely lasted one day, when soon after, Downing Street appeared to backtrack. Denying a meaningful vote to Parliament would however appear to undermine a key aspect of Brexit, which was supposed to be about taking back control, empowering the Westminster Parliament. This issue has certainly not gone away and will be will redebated this week as the EUWB is reconsidered in both the Lords and Commons.
All of the other Lords’ amendments were rejected by the House of Commons (or in a couple of cases replaced by Government amendments). A cluster of Lords’ amendments related to maintaining important fundamental rights endowed on the UK by EU law, and votes on these took place last Wednesday. As Vernon Bogdanor has argued, perhaps the most notable feature of Brexit is that it transforms the UK from a protected (because it entrenches EU rights) Constitution to an unprotected one (because the special protections of EU law will be abolished and EU Charter of Fundamental Rights not retained in the UK). There will be no special constitutional protection in the UK for rights such as equality rights. The House of Lords had attempted to remedy this, most notably through crossbencher Lord Pannick’s amendment to transfer the Charter of Fundamental Rights into domestic law. However, the Government wishes to exclude the Charter, arguing it merely repeats much UK law. This is highly debatable, as many Charter rights are protected neither by the Common law nor by the UK’s Human Rights Act (for example rights to data protection, especially important in the Big Brother era of surveillance; many workers’ rights, and many aspects of the right to equality). They therefore become especially vulnerable to repeal after Brexit. A further Lords’ amendment to provide enhanced scrutiny for secondary legislation that would amend or repeal retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards, also failed to be sustained in the Commons. So much for protecting workers’ rights and a ‘jobs first Brexit’.
At present, rights guaranteed under EU law benefit from its supremacy over national law, and the strong remedies EU law provides – in some cases requiring setting aside of conflicting national law. After Brexit, rights currently guaranteed by the Charter will be at the mercy of Parliament or even of ministers using secondary legislation, which can amend or delete them. This means that the status of those rights will be fundamentally different, and they will no longer be protected. It is truly unusual, perhaps unprecedented, for a democracy to withdraw from a major international human rights regime, to shed the special protections of EU rights law, as the UK is doing with Brexit.
In contrast to the House of Lords, MPs are behaving in a submissive fashion. This means the elected House is failing to resist provisions in a Bill that will transfer a huge amount of power to government to amend or repeal legislation, with very little or no room for parliamentary scrutiny. They are also permitting the weakening of rights protection and enforcement, and failing to scrutinise and render government accountable. This is to be deplored.