Background briefing on Lords amendments to the Brexit Bill

The European Union (Notification of Withdrawal) Bill is returning to the Commons on Monday for consideration of two amendments inserted by the Lords. One is on the status of EU/EEA citizens in the UK, and the other is on a ‘meaningful’ parliamentary vote at the end of the negotiation period.

Similar amendments had previously been voted down in the Commons, who now have the option of agreeing or disagreeing with each Lords amendment, or amending or proposing alternatives to it.

EU/EEA citizens in the UK
Lords amendment 9B
On 1 March 2017 the House of Lords amended the Bill to include a provision to guarantee the residence rights of EU and EEA citizens (hereafter ‘EU/EEA citizens’) presently in the UK. It would require the Government to introduce proposals for achieving this within three months of the triggering of Article 50.

Peers in favour of the amendment spoke of the UK’s moral obligation to reassure and protect the millions of EU/EEA citizens and their family members who came to Britain believing they could build careers and lives here. Some raised the complexity of the current arrangements by which EU/EEA citizens can acquire proof of their right to permanent residence; others highlighted the dependence of industry and the NHS on European workers. Many of those who opposed the amendment denounced talk of ‘bargaining chips’, and argued that the best way to protect both EU/EEA citizens in the UK and British nationals elsewhere in Europe was not to delay passage of the Bill and to allow negotiations to commence with this issue first on the agenda.

Free movement
Free movement is central to the concept of EU citizenship. It is a right enjoyed by all citizens of the Union (those with nationality of any of the 28 Member States).

All EU/EEA citizens have a right to reside in another EU Member State for up to three months without any conditions other than the requirement to hold a valid identity card or passport. After three months certain conditions apply, depending on the status of the EU/EEA citizen (eg whether they are a worker or a student etc). Those who opt to exercise their free movement rights are protected against discrimination in employment on the grounds of nationality. Provisions co‑ordinating social security rules ensure citizens do not lose entitlements by working elsewhere.

EU/EEA citizens who have resided legally for a continuous period of five years in another EU Member State automatically acquire the right to permanent residence there. To qualify for permanent residence, students and the self-sufficient must possess comprehensive sickness insurance cover throughout the five year period. Confusingly, while EU/EEA citizens in the UK have access to NHS care, this does not satisfy the requirement to have comprehensive sickness insurance cover.

UK immigration law as it applies to non-EU/EEA citizens is significantly more restrictive.

What was said during the referendum campaign?
The Government White Paper noted that if the UK left the EU, remaining Member States would no longer be required to maintain the rights currently enjoyed by UK citizens. Securing these rights would likely require the offer of reciprocal protection for EU/EEA citizens resident in the UK.

Both the Vote Leave and Leave.EU campaigns claimed the status of EU/EEA citizens lawfully resident in the UK would be unaffected as a result of Brexit.

The Government position since the referendum
The Government immediately sought to reassure EU/EEA citizens in the UK that there was no change in their status as a result of the vote to leave.

In the months since the referendum ministers have reiterated that the Government wants to protect EU/EEA citizens’ status. They say the only scenario in which such an outcome would be impossible is if the rights of British citizens in remaining Member States are not protected in return. In her Lancaster House speech of 17 January 2017 Theresa May suggested the blame for the failure to achieve a reciprocal agreement lay with a handful of other European leaders. Despite this, the Government has faced accusations of treating EU/EEA citizens as ‘bargaining chips’ in the expected negotiations with the European Commission.

Parliamentary reaction
The Joint Committee on Human Rights urged the Government to seek a quick resolution by way of a separate, preliminary agreement to avoid subjecting individuals to ‘continuing and distressing insecurity’. The House of Lords European Union Committee called on the Government to give a unilateral guarantee that it will safeguard the EU citizenship rights of all EU nationals in the UK post‑Brexit. The Brexit Committee is critical of the current, ‘untenable’ system by which EU migrants apply for proof of their right to permanent residence in the UK. It has called on the Government and the European Commission to make resolution of the issue the first order of business in the negotiations.

Commons Committee Stage
A similar amendment was moved by Harriet Harman during the Committee Stage in the Commons. The proposed amendment was rejected by a majority of 42, with 290 members voting in favour and 332 voting against.

A ‘meaningful vote’?
What is the ‘meaningful vote’ debate about?
Now that Parliament has agreed in principle to the Government triggering Brexit, and the Government has agreed that there should be a vote on a proposed withdrawal agreement before it is signed, the debate boils down to three main questions:

· Should the Government’s commitment to a vote be enshrined in legislation?
· What are the implications of Parliament voting against a withdrawal agreement?
· Should Parliament also have a vote if the Government decided to leave the EU without a withdrawal agreement?
These raise a wide range of issues, including parliamentary sovereignty, the negotiation of treaties and compliance with the referendum result.

Revocability is key
Underlying the whole debate is the unanswered question of whether a withdrawal notification can be suspended or revoked. Although there is a widespread assumption that it cannot, no court has ruled on this and there is considerable opinion that notification could in fact be revoked.

The effects of a vote against a withdrawal agreement (or against leaving without an agreement) would be completely different depending on the answer.

Government commitment and new clause compared
The main difference is that the new clause requires parliamentary approval of a Government decision to leave the EU without a withdrawal agreement, which the Government commitment does not.

Arguably the Government’s undertaking does not say that the Prime Minister would necessarily be bound by the vote.

Should the vote be specified in legislation?
Whether or not to enshrine the commitment to a vote in legislation depends on issues including whether one trusts the Government, whether one wants to guard against a change of circumstances, and whether one considers that a legislative requirement will bind the Government’s hand more than a political commitment.

Either would go further than is normal for treaties.

What if Parliament rejects the withdrawal agreement?
What would happen if either or both Houses voted against a proposed withdrawal agreement? Should the Government seek to renegotiate? Could a ‘no’ vote delay or even prevent Brexit? Or would it mean the UK leaving the EU with no agreement?

These questions apply both to a vote under the Government’s commitment and one under the Lords’ new clause (neither of which specifies the full implications of a no vote), and the answers are not clear. The only certainty is that the EU would not be able to prevent the UK from leaving the EU without an agreement.

Another question is what would happen if the Commons accepted the withdrawal agreement but the Lords rejected it.

What if the European Parliament rejects the withdrawal agreement?
The European Parliament (EP) will not be involved in the withdrawal negotiations themselves, but under Article 50 of the Treaty on European Union (TEU) its consent is needed before the Council can conclude a withdrawal agreement. The EP would like greater involvement and says it might reject the final withdrawal agreement if EU leaders do not agree to this.

If the EP rejects the agreement, and if there is no possibility of continuing negotiations, the UK might have to leave without a withdrawal agreement.

Should Parliament have to approve leaving the EU without an agreement?
The Government suggests this would not be a ‘meaningful vote’. But the Lords’ new clause specifies that Parliament must approve a decision by the Prime Minister to leave the EU without an agreement, because of the implication on rights.

The effects of Parliament voting against such a decision are not clear.

Is an Act of Parliament required at the end of the negotiations?
A legal opinion published shortly before the Bill went to the Lords argues that there is a UK constitutional requirement for an Act of Parliament to give effect to a withdrawal agreement, or to authorise withdrawal from the EU without an agreement – the current Bill is not enough.

The Government and others disagree.

‘Meaningful votes’ on EU matters
The UK Parliament has not had a statutory power to approve any of the major EU Treaties or Treaty amendments on their conclusion by EU governments, although UK ratification has involved an Act of Parliament in each case to give them legal effect.

The closest the UK Parliament has come to a ‘meaningful’ vote in the sense of the Lords amendment was in 1971, when the then Prime Minister, Edward Heath, said Parliament would decide whether to proceed with the UK application to join the then European Economic Community (EEC) on the basis of the terms negotiated. That decision was made in October 1971 on a Government motion to approve its “decision of principle to join the European Communities on the basis of the arrangements which have been negotiated”.

The European Union Act 2011 gave Parliament statutory powers to approve certain EU Treaty amendments or EU acts before the Government could agree to them at EU level. However, this has sometimes resulted in Parliament having to pass an Act of Parliament so that the Government can approve relatively insignificant EU proposals in the Council.