The Brexit Bill: Stay or go?

Following the Supreme Court ruling at the end of January, the bill is required to confer authority on the prime minister to notify the EU of the UK’s decision to withdraw under the terms of article 50.

Emerging unscathed from the House of Commons, where the opposition parties clearly agreed to ‘respect the will of the British people’ expressed in the referendum, the EU (Notification of Withdrawal) Bill passed its first formal test in the House of Lords and received a second reading in the usual way without a vote.

But this was not before 20 hours of debate spanning two days, with 184 peers making contributions – the largest second reading debate on record. Although not an opportunity to amend the Bill, there was plenty of time for peers to make clear there is no consensus in their house for simply surrendering to the government the final word on how Brexit is to be effected.

While the government conceded before Christmas the principle that parliament should have a vote on the final agreement reached with the EU 27, many peers made clear their wish for statutory reinforcement of that promise by amendment to the current bill.

On one subject, however, the minister Lord Bridges, late on the second evening, did obtain agreement: ‘Whether one voted to leave or remain, we can all agree that, after 20 hours of debate, it is time not to remain but to leave this House and to go to bed’.

What are the next stages?

The next stage in the bill’s passage through parliament is the committee stage in the Lords, taken as a committee of the whole house – a debate on the floor of the chamber – over two days. The first sitting of the committee stage took place on 27 February and it continues today. The report stage (another opportunity to debate amendments) and third reading are scheduled for 7 March. If the bill remains unamended, it will go for formal royal assent very quickly afterwards. This timetable would allow Theresa May to keep her self-imposed commitment to invoke article 50 by the end of March.

Can the Lords try to frustrate the government?

To date, 43 amendments have been tabled. Many mirror those tabled in the Commons raising matters such as single market membership, protection of the Common Travel Area between the UK and Ireland, and the rights of EU citizens resident in the UK. Is there any realistic chance of them being successful?

The government does not have a majority in the Lords. In addition to a large number of Liberal Democrat peers hostile to Brexit, the government must also contend with 178 crossbench peers who are not aligned to any political party. But to be successful any amendment would have to have the agreement of a cross-party grouping – an alliance between Labour peers, the Lib Dems, and an appreciable number of crossbenchers.

An amendment requiring parliamentary scrutiny and approval of both the ‘divorce settlement’ and the future relationship following the two-year negotiating period looks like a possible candidate. Lord Pannick, who led the case against the government in the Supreme Court, has put his name to such an amendment and spoke to the principle at second reading. An underscoring of parliamentary supremacy has obvious attractions to both houses.

What if the Lords agree amendments to the bill?

If the Lords do push the matter to a vote and an amendment is agreed, the amended bill would have to return to the Commons, where, unless for some reason the government has agreed to concede, we can expect MPs to reverse any Lords’ amendments. Ultimately, both houses have to agree the final wording to a bill and a bill must pass back and from house to house –known as ‘ping pong’ – until an agreement is reached. Determined opposition from the Lords could therefore potentially jeopardise the government’s March target for triggering article 50.

Today’s committee stage will therefore reveal whether the Lords are up for a fight.

It seems unlikely that the unelected chamber will seriously try to derail or even delay a bill that gives effect to the people’s view at the referendum, even more so now the Commons has passed the bill unchanged. But an amendment to secure a vote on the final deal may just find common cause and be a compromise the government is prepared to reach, with all sides keeping their powder dry for the inevitable battles ahead.

David Mundy is a partner and Oliver Spencer a trainee solicitor at Bircham Dyson Bell

@BDB_Law

www.bdb-law.co.uk