The EU (Withdrawal) Bill completed its passage through the House of Commons on 17 January, receiving its first reading in the House of Lords the next day. While a huge number of amendments to the Bill were tabled during its time in the Commons, only a few substantive amendments were actually passed. We have summarised the key amendments made during the House of Commons and their potential impact on the Brexit process should they make it through the House of Lords.
Deficiencies in retained EU law
The Bill previously included a list of forms of "deficiencies in retained EU law" that could be remedied by secondary legislation, but this list was not exhaustive. Amendments passed on 17 January makes the list in section 7(2) exhaustive, and it can now only be amended by regulations passed by resolutions in both Houses of Parliament.
Legislation to approve final Brexit deal
The Bill now includes a requirement that "the final terms of withdrawal", i.e. the negotiated deal with Brussels, is approved by legislation, therefore requiring passage through both the Commons and the Lords. However, the Bill does not provide a mechanism to be followed if such legislation is not passed, and the Article 50 notification is neither extended nor withdrawn (although there is not yet any agreement on whether withdrawal is even possible).
Exit day set in stone – or not
The Bill previously stated that "Exit Day" would be defined by regulations at a later date, to enable flexibility if the Article 50 notification was extended. However, the date is now set at 29 March 2019, and this can only be amended by a resolution approved by both Houses.
Regulations in devolved authorities
Previously, regulations made in Cardiff, Holyrood or Stormont to deal with deficiencies in EU law in devolved matters were required to have the consent of the Westminster Government. This has now been amended to state that the devolved authorities must consult with Westminster, but consent is not strictly required. However, it should be noted that the intricacies of the three devolution agreements will also affect the interaction with Westminster when passing regulations.
Annulment procedure
There were some quite technical changes to the way in which regulations made under the eventual Act may be annulled. The majority of the measures to correct deficiencies in the law post-Brexit will be made in regulations by Ministers. One option for these regulations is that they are made and come into force unless either House votes to annul them. However amendment made to the Bill in the Commons now mean that a Minister wishing to pass regulations in this way will need to make a statement explaining why this is the case, and either a House of Commons committee must agree with this or they must be laid before Parliament for 10 days without anyone proposing a resolution against the regulations.
Explanatory statements
Under a further amendment to the Bill, regulations laid before Parliament under the Act must be accompanied by a statement from the Minister affirming that they do "no more than is appropriate" and explain whether it amends any equalities legislation. In addition, the Minister must confirm that they have had "due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010."
What this means
The requirement for Parliament to approve the final Brexit deal adds more uncertainty to the process, as it is still unclear what would happen if the deal was rejected. Organisations will therefore need to prepare for all scenarios in the meantime, ranging from remaining in the EU to a hard Brexit, as well as the negotiated withdrawal agreement. However the other amendments should make the passage of any future regulations to remove EU law from English law more transparent; this will give further opportunities to lobby the Government and Parliament as to what these provisions may contain, and those interested may wish to engage with others who wish to affect the process.
Despite this, it is important to remember that the Bill must still pass the Lords, where further amendments are likely to be passed, and will then go through 'ping pong' where both Houses of Parliament seek to come to an agreed version of the Bill. This may take some time, and the final provisions of the Act will not be known for some time. The latest version of the Bill is available on the Parliament website.