It looks like the government has caved on the draconian “Henry VIII powers” written into its EU Withdrawal Bill. MPs have won the argument, and an amendment is now promised. On Wednesday there will also be a crunch vote on giving Parliament a “meaningful” say on the final Brexit deal. Passing this Bill has already been a torturous process, and there’s plenty more to come.
How this Bill gets passed
MPs have been ploughing through over 450 amendments to the European Union (Withdrawal) Bill. After five days of detailed discussion the Government has survived all the votes so far, albeit sometimes narrowly and on some occasions only after making concessions.
As this Bill is a constitutional Bill, its Committee stage must be taken on the floor of the Commons. MPs are considering the first batch of detailed amendments and they have three more days of debate in this stage. At the next stage, the Report stage, they will consider further (but fewer) amendments before the completed Bill is sent to the Lords for the same process to be repeated there.
Unexpected concession and new problem
The debates on the Bill haven’t turned out as some expected, partly because the government made an unexpected concession. Fearing defeat on an amendment tabled by backbench Tory Remainers, the government promised that it would bring forward a new Bill to seek Parliament’s approval of the Brexit agreement with the EU, including the transitional phase.
On the other hand, the government created a new problem for itself by unexpectedly also announcing that it would put the date of Brexit, March 29 2019, into the Bill. This was a concession to Tory extreme Brexiters but the explosive reaction from other Conservative backbenchers means that the government’s new amendment to do this now faces defeat.
Despite all these manoeuvres, issues of importance remain and the government still faces several hurdles to get the Bill through Parliament without significant amendment.
Henry VIII and meaningful vote
On December 12 the Commons will debate Clause 7, which gives ministers the power to deal with any “deficiencies” in EU laws retained after Brexit. This Clause is at the heart of debate about whether ministers are trying to take draconian powers (Henry VIII clauses) in the Bill to change laws without parliament’s direct consent. Faced with amendments seeking to restrict ministers’ powers tabled by former attorney general Dominic Grieve, and supported by more than a dozen other Tory MPs, the government has backed down. Hiding behind a helpful report from the Commons Procedure Committee, which suggested a select committee should consider proposed law changes and decide how parliament would approve them, ministers have ducked the fight. This might be sufficient to satisfy Tory rebels now but they will want to see what amendments the government tables before the Bill goes to the Lords.
The biggest hurdle for ministers is Grieve’s amendment 7, due for debate on December 13 when he will attempt to force ministers to put their promise of fresh legislation to approve a deal with the EU into the text of the Withdrawal Bill. The fiasco of the 50 impact assessments that never were has further lowered the credibility of the already bruised Brexit secretary David Davis, making his promises of fresh legislation on the Brexit deal harder for some MPs to believe. Grieve’s amendment is widely supported across the House and even though ministers will argue it is unnecessary, this could be a close vote.
The final day of Committee will see the debate on the government’s attempt to include the March 29 2019 as the exit day in the Bill. Yet again Ministers face defeat as even some Leave-voting Tory backbenchers think putting the exit date into law in this way is an absurd hostage to fortune.
Battles in the new year
After Christmas, when the Bill comes back for its Report stage, a different set of problems looms. To defuse potential rebellions at the Committee stage, ministers have been promising amendments of their own. At Report they are going to have to table these for debate.
The first concessions they promised were over questions of EU law and the EU’s Charter of Fundamental Rights. This is complex, but essentially the government’s Tory backbench critics think that people and businesses should not lose any rights they have now after Brexit. For example, the right to be compensated if the government bungles the implementation of EU law and causes damage to individuals or businesses in the process (known as Francovich after the test case).
Ministers also promised to address concerns about the powers of the devolved governments. All the Scottish political parties argue that the government is taking powers back from Brussels that should be given to the devolved administrations. When this part of the Bill was debated, Scottish Tory MPs made clear their agreement with the SNP and Scottish Labour in pretty stark terms. Defeat was avoided by promises of a government concession that they must produce at Report stage.
So far the passage of the Brexit Bill has been a nervous experience for ministers but they have survived largely unscathed. It is about to get much more difficult not least because they are at the mercy of events. This was seen last week when ministers tried to bat away an amendment to incorporate the Good Friday Agreement into the Bill on technical grounds, despite a powerful speech from independent Unionist Sylvia Hermon. It was not the day to be making that argument. A hapless junior minister ended up having to promise to look at it again. Expect more of the same.
This article has been updated since publication to more prominently feature the government’s concession on Henry VIII powers.