Lords amendments to the EU (Withdrawal Agreement) Bill

Graeme Cowie

On Wednesday 22 January 2020, the House of Commons will consider the amendments made by the House of Lords to the European Union (Withdrawal Agreement) Bill 2019-21 (the WAB). This Bill completed its Commons stages on 9 January, having been introduced in December 2019. An earlier version of the Bill, introduced in October 2019 during the previous Parliament, fell on dissolution ahead of the 2019 General Election.

This Insight explains what changes the House of Lords has made, why this Bill has come back to the House of Commons, and what role the Commons will have when considering these amendments.

What changes did the Lords make to this Bill?

No amendments were put to a vote in Lords Committee Stage, but five amendments were made at Report Stage on Monday 20 and Tuesday 21 January.

Clause 7 – EU Settlement Scheme

The Lords voted at Report Stage for Lord Oates’s amendment 1 by 269 votes to 229.

This amendment would change the Government’s EU Settlement Scheme from a ‘constitutive’ one (whereby individuals must formally secure their settled status by a deadline to be entitled to citizens’ rights under the Withdrawal Agreement) to a ‘declarative’ one (whereby settled status is merely proof of entitlement to rights already granted by law). It would also entitle EU, EEA, and Swiss nationals to a physical document proving their new immigration status, whereas otherwise only digital confirmation would be provided.

Clause 26 – Interpretation of retained EU law

The Lords voted at Report Stage for Lord Beith’s amendment 12 by 241 votes to 205 and Lord Mackay’s amendment 14 by 206 votes to 186.

Clause 26, as introduced in December, differed from the October 2019 version of the WAB. New subsection 26(1) amends section 6 of the EU (Withdrawal) Act 2018. Government ministers would be able to decide by regulations if, when and how lower courts in the UK should depart from retained Court of Justice of the European Union (CJEU) caselaw (when interpreting retained EU law) after the transition or implementation period. This provision attracted criticism, as it was unclear how this power would be used and how it would affect the internal hierarchy of the UK courts.

Lord Beith’s amendment would prevent lower courts from departing from CJEU caselaw (restoring the original position in section 6 of the EU (Withdrawal) Act 2018).

Lord Mackay’s amendment would require lower courts instead to refer the matter to the UK Supreme Court (or the High Court of Justiciary in Scottish criminal cases) before any decision is taken to depart from retained CJEU caselaw. The decision on whether that could happen would then be taken by the higher court.

Clause 37 – Family reunification for asylum-seeking children

The Lords voted at Report Stage for Lord Dubs’ amendment 18 by 300 votes to 220. This would leave out clause 37 from the Bill, and therefore leave in place the requirements of section 17 of the EU (Withdrawal) Act 2018 regarding family reunion.

At the moment, section 17 requires the Government to seek to negotiate an agreement with the EU. Such an agreement would aim to facilitate family reunion for unaccompanied children who have claimed asylum in the EU and have a relative in the UK (or vice versa).

Clause 37 of this Bill had sought to dilute this obligation. Instead the Government would only have to make a policy statement on family reunification within two months of Royal Assent.

Clause 38 – Parliamentary Sovereignty

The Lords voted at Report Stage for Baroness Hayter’s amendment 20 by 239 votes to 235. It amends clause 38.

Clause 38 is a declaratory provision to the effect that the UK Parliament is ‘sovereign’ despite the special status that the WAB will give the Withdrawal Agreement in domestic law.

This amendment modifies the declaration of Parliamentary sovereignty, so that it explicitly takes into account the Sewel convention. It therefore provides additional constitutional context as to when and how the UK Parliament exercises its sovereign law-making powers in devolved areas.

The legislative consent convention, which is already recognised in both the Scotland Act and the Government of Wales Act, provides that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislatures. However, as stated by the UK Supreme Court in 2017, the convention is not enforceable by the courts even where it is recognised in statute.

A bicameral legislature

The UK Parliament is a bicameral legislature, which means that it has two legislative chambers. Before a Bill can become an Act of Parliament, it must formally be approved by both Houses. A Bill will first complete its main stages in one House, and then it will complete the same stages in the other House (though either House could come first). If the second House amends the Bill brought to it by the first, the first House will then be asked to consider those amendments.

There are circumstances in which a Bill can receive Royal Assent without the agreement of the House of Lords but, with the exception of money Bills, this can only happen after a delay of at least one year from Commons Second Reading (under the Parliament Act 1949).

The WAB is not a money Bill because it contains a range of measures concerned with non-money issues. The Government also cannot in practice wait a year to pass the WAB because of the Article 50 deadline of 31 January 2020 for ratifying the Withdrawal Agreement.

Under the Salisbury-Addison convention, the House of Lords is expected not to obstruct the passage of a Bill where and to the extent that it implements the manifesto commitments of a majority Government. The EU (Withdrawal Agreement) Bill is a manifesto Bill because the Conservative manifesto promised to implement the negotiated Withdrawal Agreement if it was returned with a majority in the 2019 General Election. However, this does not prevent outright the House of Lords from proposing amendments to the Bill. Such amendments could be to make sure the Bill is better drafted or on more detailed questions of policy.

What role does the Commons have?

The House of Commons might accept, reject, or offer alternatives (‘amendments’ or ‘amendments-in-lieu’) to Lords amendments. If MPs accept all the changes, the Bill can then be prepared for Royal Assent and become an Act. If there are outstanding areas of disagreement, those matters must go back to the Lords for further consideration. This process (also known as ‘ping pong’) continues until either full agreement is reached or the Bill becomes deadlocked.

With the WAB, it is expected that the Commons and Lords will resolve their areas of disagreement on Wednesday 22 January.