Of human rights and Brexit: the importance of the EU Charter.

Yesterday, as you may be aware, was Day Two of the Commons’ consideration of the Lords amendments to the European Union (Withdrawal) Bill. Lords amendments that were up for debate in the House included Amendment no. 1 (to prevent the repeal of the 1972 Act unless the UK government sets out plans to negotiate a continued customs union post Brexit); amendment no. 51 (to oblige the UK government to prioritise continued participation in the EEA during the negotiations); and amendment no. 5 (to allow for the transposition of the EU Charter of Fundamental Rights into domestic law post Brexit). I had been glued to the Commons livestream and BBC Parliament throughout Tuesday (13 June), Day One of consideration, and Wednesday, Day Two of same.

Yesterday, I recalled how I had followed as the Lords inflicted defeat after defeat on the UK government on the Bill. I remembered feeling so utterly relieved that vital issues had been raised in the Lords, and that important amendments had been tabled to the Bill (including an amendment to uphold the provisions of the Good Friday Agreement, to allow for continued North-South co-operation, and to prevent a hard border on the island). I had felt so frustrated at the government’s lack of consideration of such pressing issues, at their continuous intent to pursue a hard Brexit, at their seemingly haphazard Brexit policy. To see the Lords debate and consider the issues which the government seemed intent to ignore was refreshing and uplifting. Finally, I thought, finally issues like the Good Friday Agreement and the need to prevent the imposition of a hard border in Ireland were being considered and would be inserted into draft legislation. Finally, human rights and equality protections were being recognised, and tabled for inclusion in the draft legislation.

You see, the outcome of the European Referendum in the United Kingdom which led to the Brexit result always had vast political, economic and social implications. There remains, however, considerable uncertainty as to what those ramifications will be – including the implications for human rights standards and protection. This uncertainty has not been helped by the repeated dismissals of the UK government that human rights and equality protections would not diminish – even as the White Paper on the then-named Great Repeal Bill was published, with the deliberate ommission of the EU Charter.

The European Union (Withdrawal) Bill when introduced in the Commons last year in accordance with the White paper did not make provision for the retention of the Charter. The UK government considered then (and still does now) it to be an exception to the incorporation of EU law into UK law, with the Bill stating the Charter shall not be part of domestic law on or after exit day. The Bill states this does not affect the retention of any fundamental rights or principles which exist irrespective of the Charter. The UK Government has emphasised that the Charter did not create new rights; rather it codified rights and principles already present in EU law.

This claim is inaccurate.

All EU member states have signed up to the European Union Charter of Fundamental Rights. The Charter was given legal status in 2007 through the Lisbon Treaty, and was introduced in December 2009. The Charter complements the European Convention on Human Rights (ECHR), and recognises at Article 52(3) that wherever Charter rights correspond to Convention rights, the meaning and scope of the rights are the same as those laid down by the Convention. This provision does not prevent EU law providing more expansive protection. Indeed, EU law has availed of this, as outlined below.

Now, the scope of the Charter is narrower than the ECHR, in that it applies the convention rights only to public bodies and only when they make decisions within the scope of EU Law. Moreover, the Charter has not been incorporated into domestic law through the Human Rights Act 1998. However, in other respects, the Charter offers greater scope through enforcement at the Court of Justice of the European Union (CJEU). The CJEU can disapply national law and provide remedies. In contrast, recognised breaches of Convention rights in primary legislation can only lead to a declaration of incompatibility, thus leaving any remedy to Parliament. Moreover, the Charter also goes beyond the Convention in outlining social and economic rights alongside civil and political rights under the headings of dignity, freedom, equality, solidarity, citizen’s rights and justice.

Therefore, whilst rights similar to most Charter rights can be found in ECHR and domestic laws, it is important to note that similar is not necessarily the same. The Charter protects important rights that may not be fully secured by other sources.

The Charter is widely considered to be the most advanced document of its kind, and includes rights that cannot be found in any other directly enforceable fundamental rights instrument to which the UK is a party. Unlike older instruments, the Charter contains ‘third generation’ rights – such as to data protection and guarantees on bioethics – that have proven especially important in protecting people’s rights in light of rapid technological and societal change.

UK law does not have the domestic equivalent of the Charter, meaning there could be a gap in human rights protections for such outlined third generation fundamental rights ie socio-economic rights post-Brexit.

Lord Pannick moved the amendment in the Lords which sought to allow for the transposition of the Charter into UK statute post Brexit. He emphasised the significant protections it provides, the legal uncertainty that would be generated should it not be incorporated into domestic law, and the loss of rights protections which are not present in current domestic legislation. The majority of peers who voted on his amendment understood the significance of the Charter, and voted in favour of retaining it. And so the government was defeated.

The government had avoided an embarassing defeat previously in the Commons. In November 2017, the former Attorney General Dominic Grieve MP tabled an amendment that would have enshrined the EU Charter into UK law as part of the EU (Withdrawal) Bill. During the third day of debate on the Bill, the Solicitor General, Robert Buckland, said the UK Government was willing to work with Mr Grieve to see how rights under the Charter could be kept after Brexit, and would introduce its own amendment to this effect later in the bill’s passage. Mr Grieve said that was sufficient reassurance for him, and so he would not press for a vote on his amendment.

On the 5th December 2017, the UK Government published its Right by Right analysis of the Charter. The conclusion was that there would no weakening of rights protections post-Brexit, even if the Charter ceased to be part of UK statute. However, the UK Government’s Right by Right analysis, contrary to its aim, clearly demonstrates what will be lost when the Charter is abandoned. As highlighted by Liberty and Amnesty, the analysis cites the general principles of EU as providing equivalent rights -yet these are the very same principles whose enforceability is eroded by the European Union (Withdrawal) Bill.

In addition, the Equality and Human Rights Commission sought independent legal advice which found that, as opposed to the prevention of weakening of rights protections, rights would in fact be lost, such as those which do not have direct equivalents in other UK human rights law e.g a freestanding right to non-discrimination, protection of a child’s best interests and the right to human dignity.

The Opinion concluded:
In summary, therefore, my principal conclusion is that the approach currently taken in the Bill does not achieve the Government’s stated intention that the protection of substantive rights conferred by the Charter will not be weakened. That intention can only be achieved by 13 incorporating relevant provisions of the Charter in the corpus of EU law which is retained after Brexit.

And so we come full circle, to Lord Pannick’s amendment receiving support from a majority of peers in the Lords, to that amendment returning to the Commons for a potential showdown in accordance with parliamentary ping pong. I followed the debate with interest.

In April this year, at the SDLP annual conference, I proposed my motion which included a provision to note with concern that the UK government’s EU (Withdrawal) Bill omitted to transpose the EU Charter of Fundamental Rights into domestic law upon withdrawal from the EU. I noted my concern that the government’s Brexit policy was not considering vital human rights and equality protections. My motion overall called for the prevention of any weakening of human rights protection post-Brexit.

I spoke in my capacity as the SDLP’s International Secretary, and said (half jokingly!) how since I was elected to the post, I had not stopped talking about the ramifications of Brexit to NI, but particularly my concerns about implications for human rights and equality standards.

Yesterday, I watched as the House of Commons voted by just twenty votes (321-301) to reject the amendment from the House of Lords to the EU (Withdrawal) Bill that would have incorporated the EU Charter into domestic law.

Watching as the vote was confirmed, I felt a crushing sense of loss.

The EU Charter provides for additional recognition and protection for third generation, fundamental rights, socio-economic rights such as workers’ rights (including collective bargaining). The Charter has allowed for the evolution of important rights we now take for granted. It has been a valuable addition to equality and non-discrimination law, specifically around LGBT rights, children’s rights, and rights of the elderly. I could not, and today I still cannot understand how MPs could vote to reject important provisions on human rights, equality, and non-discrimination protections.

I was disappointed, but sadly not surprised. After all, the party of government has long supported the repeal of the Human Rights Act 1998, and its replacement with a British Bill of Rights. Moreover, the Conservative party would also been keen to see the UK withdraw from the ECHR – a deeply concerning prospect.

No matter what the UK government, various ministers, or the UK government’s ‘right by right analysis’ state, UK law does not have the equivalent of the EU Charter. Excluding the EU Charter from the EU (Withdrawal) Bill, with the implication that it will not be retained post Brexit, will result in a significant reduction in human rights protections. There will be a gap in human rights protections for those third generational rights, those socio-economic rights, as well as generate legal uncertainty and confusion.

There will also be a specific impact on NI: the Good Friday Agreement provided that there would be an equivalence of human rights and equality standards across the island of Ireland. If NI loses the protections advanced by the EU Charter whilst the Republic retains them, then citizens in NI will suffer from a diminution of human rights standards, recognition, and protection. The UK government is a co-guarantor of the Agreement; it should be aware that its desire to refrain from incorporating the EU Charter into domestic law clashes with the Agreement.

The overall decision to leave the European Union has highlighted -and in conjunction with the UK government’s current Brexit policy, threatened -the Good Friday Agreement’s aim of ensuring an equivalent level of human rights protection across the island of Ireland. The potential loss of the Charter in conjunction with the ongoing absence of a Bill of Rights for Northern Ireland means human rights protections could be undermined. The UK government as a co-guarantor of the Good Friday Agreement must understand it has a responsibility to support the full implementation and realisation of all provisions of the Agreement, including those which require equivalent human rights standards and protections. Apparently, the UK government is not aware of this important responsibility.

At the SDLP annual conference, I concluded my speech by saying, “Theresa May says Brexit means Brexit. We must say human rights mean human rights.”

I am disappointed and frustrated by yesterday’s vote and the continuation of the UK government to pursue a purist Brexit ideology which is ignoring human rights and equality provisions. We deserve better. Our human rights deserve better.

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Davis/Barnier press conference after fifth round of talks.

(Given the recent Brexit developments, including the European Council summit and Theresa May’s Brussels dinner, I thought to share a summary of the last Brexit talks’ presser.)

Speaking after four days of negotiations, the Chief Negotiator for the EU, Michel Barnier, said the EU and the UK are in “deadlock” over the UK’s financial commitments, but progress could be made by Christmas.

Mr Barnier said the EU and the UK share the same objectives: protecting rights of EU citizens, safeguarding the peace process in Northern Ireland and getting a financial settlement.

Regarding citizens’ rights, he said there were two common aims: ensuring the withdrawal agreement has direct effect, and ensuring the interpretation of these rights is “consistent” between the EU and the UK. Both sides were working on this, and it would involve the European Court of Justice.

On the issue of the island of Ireland, Mr Barnier said the EU and the UK reached an agreement on the Common Travel Area (CTA). “Intensive work” had been taken on the Irish question, with more work to come. Both sides were examining North/South co-operation.

Mr Barnier said that on the issue of the UK’s financial commitments, both sides had reached “deadlock” which he described as “very disturbing”. With the UK still not ready to outline its commitments, he added this meant not enough progress had been made in the negotiations. Concluding his remarks, Mr Barnier said with political will, “decisive progress is within our grasp over the next two months”.

Following the EU’s Chief Negotiator, the Secretary of State for Exiting the EU, David Davis, said whilst there was still a lot of work to do, they have come a long way.

On citizens’ rights, they focused on ensuring how rights could be guaranteed in a fair way. The UK and the EU had not yet reached an agreement on how to enforce these rights, but various options were being examined and both sides were confident a deal would be reached.

Mr Davis said that with regards to the Irish question, more work was required but further progress had been made. Both sides have agreed to start working on common undertakings to protect the Good Friday agreement.

On the financial settlement, Mr Davis said that would be a “political issue”. Concluding his remarks, he stressed that both sides must discuss the future relationship, and expressed a hope that the European Council will allow Mr Barnier to let talks progress to discussing a future trade relationship.

Further talks over the next two months have been agreed.

Brexit, leaks, and missing Bills: news summary.

What a week it has been, and we are only two days in.

Brexit update

Prime Minister Theresa May was back in the Commons on Monday afternoon, with a statement covering last week’s EU summit, and the round of diplomacy that preceded it.

Outlining the progress to date on EU citizens’ rights, the issue of Northern Ireland, and the UK’s financial commitments, Mrs May then concluded, ‘We are going to leave the European Union in March 2019, delivering on the democratic will of the British people. Of course, we are preparing for every eventuality to ensure we leave in a smooth and orderly way, but I am confident that we will be able to negotiate a new, deep and special partnership between a sovereign United Kingdom and our friends in the European Union.’

At the European Council Summit, Mrs May noted, ‘the 27 member states responded by agreeing to start their preparations for moving negotiations on to trade and the future relationship’. Which sounds great, until you remember that the EU27 agreed to commence internal preparations for negotiations on trade, not to commence trade negotitations themselves. Moreover, the EU27 made the formal declaration that ‘sufficient progress’ had not been made during the talks to date, the threshold required for talks to progress to trade. And what is more, they came to this decision in just 90 seconds.

Speaking of trade…

Theresa May is reportedly delaying a Cabinet debate on a future EU-UK trade deal because she is worried it will spark resignations.

Also – the Prime Minister and her most senior ministers are to embark on another round of fierce diplomacy over the coming weeks, aimed over the head of EU Chief Negotiator Michel Barnier and squarely at the EU27.

Of dinners and leaks

To no-one’s surprise, the recent dinner between Mrs May, Jean-Claude Junker, and Michel Barnier was apparently leaked to the Monday edition of Frankfurter Allgemeine Sonntagszeitung, better known as FAZ. (And yes, that name should ring a bell: that’s the very same German publication that published a detailed report of Mrs May’s disastrous dinner with Jean-Claude Juncker back in April.)

Once again, an unknown source has briefed the paper’s political journalist Thomas Gutschker with a detailed – and embarrassing – account of the Prime Minister’s latest dinner with Juncker, plus her later conversations with Angela Merkel and other EU leaders.

In a report published last Sunday night, Gutschker had said the mood at the latest dinner was “quite different” from the original May/Juncker summit in April. “She begged for help…Theresa May seemed anxious to the president of the Commission, despondent and discouraged.” The Prime Minister was also described as being “tormented,” sleep-deprived, with “deep rings” beneath her eyes.

FAZ also reported that Mrs May’s phone conversations with Angela Merkel and Emmanuel Macron were not seen as a charm offensive but as “calls for help,” which were rebuffed. “Merkel, Macron and Juncker could not be softened,” FAZ said. “All three insisted on further progress, especially on the sensitive issue of money, before there could be direct talks about the future. Brexit was not wanted and they could not solve the problems of the British for them, they said dryly in the chancellor’s office.”

However, the leak that wasn’t a leak that was a leak: European Commission President Jean-Claude Juncker hit back yesterday and said “nothing is true” in the story, saying “I had an excellent working dinner with Theresa May.” When asked if Mrs May had pleaded with him for help, he said: “No, that’s not the style of British prime ministers.” President Juncker also rejected reports he called the Prime Minister “tired” and “despondent,” saying “she was in good shape” and “she was fighting, as is her duty, so everything for me was OK.”

According to The Times, German Chancellor Angela Merkel was ‘furious’ at the leaks, and is concerned Theresa May could be toppled and replaced during the Brexit negotiations.

What next for the Chief Negotiator?

Michel Barnier, the EU’s Chief Brexit Negotiator, has revealed that work has now commenced on the EU’s Brexit treaty, but added that he will quit his post before trade talks with the UK are complete.

Playing down the prospect of a no-deal scenario, Mr Barnier told European journalists: “I am convinced a path is possible as long as we de-dramatise the discussion. My team are already starting work on a draft of the treaty for the exit of the U.K. from the EU.” Mr Barnier warned a trade deal with Britain would be difficult and take “several years” to complete, but said he himself will step down shortly after Brexit Day in March 2019.

Budget woes

Budget day is now little more than a month away, and the Cabinet is at war over it. Cabinet rivals are apparently bidding to replace Chancellor Philip Hammond over fears he lacks the sufficient authority to get difficult budget measures through the Commons. The Times had the scoop this week, saying: ‘Last week’s cabinet discussion on the budget was described as “14 different job applications to be chancellor”. The meeting overran as so many figures around the cabinet table demanded to speak, including Michael Gove, Jeremy Hunt, David Gauke and Andrea Leadsom. One source said that of all the contributions, Mrs Leadsom’s were the most practical and sensible.’

Wither the EU (Withdrawal) Bill?

Day two of this week, and there is still no sign of the European Union (Withdrawal) Bill this week. The list of amendments to date has, however, been published online. The PLP were apparently briefed by Labour’s Chief Whip that the Bill will not return to the Commons until after recess, week beginning 13th November…

Bercow versus the UK Government, round ??

There were extraordinary scenes in the Commons last week over the Opposition Day Debate on pausing the rollout of Universal Credit, with Commons’ Speaker John Bercow strongly criticised the UK Government’s actions (Conservative MPs were instructed to abstain in the vote), saying “this institution is bigger than one government”.

Now, he has now criticised UK government ministers for the “indefensible” delay in setting up one of Parliament’s key scrutinising committees, the Liaison Committee. The Liaison Committee, made up of the chairs of the various departmental select committees, has still not been set up more than four months after June’s general election.

Brexit, Borders, and lack of progress – news round-up.

Brexit negotiations: round four

Brexit: Fresh round of negotiations to take place [BBC News]

Brexit: Davis sees ‘no excuse for standing in way of progress’ [BBC News] The fourth round of Brexit negotiations commenced this week. This was the first opportunity for the EU delegation to respond to Theresa May’s recent speech in Florence.

As talks commenced, the EU’s Chief Negotiator, Michel Barnier, called for a “moment of clarity” from the UK. Mr Barnier said the process had been going six months and progress on key separation issues was essential. Mr Barnier said he was “keen and eager” for the UK to translate the “constructive” sentiments in Mrs May’s recent Florence speech into firm negotiating positions on issues such as citizens’ rights, the Irish border and financial issues, including the UK’s so-called divorce bill.

He issued a reminder that the UK was “six months into the process” and “we are getting closer to the UK’s withdrawal.”

Secretary of State for Exiting the European Union, David Davis, said he hoped for progress on all fronts – but made clear any agreement on financial matters could only be reached in the context of the UK’s future partnership with the EU. He said there were “no excuses for standing in the way of progress”.

About progress…

Brexit: Donald Tusk says not enough progress in talks [BBC News]

Donald Tusk: ‘No sufficient progress yet’ in Brexit talks [POLITICO EU] European Council President Donald Tusk has said not enough progress has been made to move to the next phase of Brexit talks in Brussels. Speaking after talks with Prime Minister Theresa May, Mr Tusk said: “I feel now we will discuss our future relations with the UK once there is so-called sufficient progress. The two sides are working and we will work hard at it. But if you ask me and if today member states ask me, I would say there is no sufficient progress yet. But we will work on it.”

Mr Tusk’s comments come barely a month before the European Council will decide whether sufficient progress has been made to begin trade talks, as the UK wants. If it is determined that ‘sufficient progress’ has not been made, the EU’s negotiators will be directed to continue focusing the negotiations on the issues of citizens’ rights, the financial settlement and the Northern Irish border. They will not allowed to move to discussions about a transition period or the future trade relationship sought by the UK.

Northern Ireland and the border: round four

Brexit: Northern Ireland and Irish border on talks agenda [BBC News NI] Northern Ireland and the Irish border were discussed at the Brexit negotiations on Wednesday. Secretary of State for Exiting the European Union, David Davis, said UK and EU negotiators will be “crunching through the technical detail” of the Good Friday peace agreement and the Common Travel Area (CTA).

Meanwhile, the view south of the border…

Leo Varadkar: ‘Too early’ to assess Brexit progress [BBC News] Prime Minister Theresa May met Taoiseach Leo Varadkar in London for talks on Brexit and Northern Ireland’s political deadlock. During her recent speech in Florence, Mrs May had reiterated the UK’s position that there would be no hard Irish border after Brexit. Although the UK will be leaving both the customs union and the single market, she said that both the UK and EU had “stated explicitly” they would not accept any “physical infrastructure”. Speaking after the talks, Mr Varadkar said he had encouraged Mrs May to be “more specific” about her view of the future UK-Irish relationship. He added that he thought it was too early to determine whether the UK has made sufficient progress during the Brexit negotiations.

News round-up: Brexit, Island of Ireland, and UK responsibility.

Welcome to the Houses of the Oireachtas

There will be a special meeting of the several committees with Guy Verhofstadt MEP, the European Parliament’s Brexit Coordinator, this morning from 10:30am.

The committees meeting Mr Verhofstadt for engagement are: Joint Committee on European Union Affairs meeting with the Joint Committee on Foreign Affairs and Trade, and Defence, and the Joint Committee on the Implementation of the Good Friday Agreement.

Further shores

In his address, Mr Verhofstadt reiterated that “the Irish border and all things related are a priority for negotiations” for the EU. The “unique solution” to Brexit issues in Northern Ireland is the responsibility of the UK government, which must consider the Good Friday Agreement. He suggested Northern Ireland could continue to be in the customs union and the single market post-Brexit as way to prevent a hard border on the island.

Mr Verhofstadt concluded his address with a lovely Seamus Heaney quote: “believe that a further shore is reachable from here.”

Brexit expedition

Mr Verhofstadt is on the second day of a two-day Brexit fact-finding mission on the island of Ireland. He met Northern Irish political party leaders on Wednesday, and will meet the Taoiseach Leo Varadkar on today.

Guy Verhofstadt: UK must find ‘unique’ Irish border solution [Politico EU]

Yesterday, Mr Verhofstadt said the UK had the responsibility to find a “unique solution” to the border issue. He suggested that Northern Ireland could continue to be in the customs union and the single market after Brexit as a way to prevent a hard border between Ireland and Northern Ireland – but this was a decision for the UK.

All eyes on Theresa

A special cabinet meeting at Downing Street this morning will give its formal backing to Prime Minister Theresa May’s landmark Brexit speech, which she will deliver in Florence tomorrow.

But remember: devolution revolution

Scottish and Welsh governments set out Brexit bill amendments [BBC News]

This week, Scottish and Welsh governments published proposals for amendments to the European Union (Withdrawal) Bill. First Minister of Scotland, Nicola Sturgeon and First Minister of Wales, Carwyn Jones said the Bill is a “power grab” of devolved responsibilities. Writing to the Prime Minister, they said their amendments would allow the bill to “work with, not against, devolution”.

News roundup: delay in talks, a sudden speech – it’s all about Brexit.

Whose Brexit is it, anyway?

Following on from yesterday’s news, Theresa May to deliver Brexit speech in Florence [Politics Home]

Prime Minister Theresa May will make a major speech in Florence on 22 September to set out her vision for the next stages of the Brexit talks. Downing Street said the PM will underline the UK’s wish for a “special partnership” with the EU after Brexit – May to set out post-Brexit ‘partnership’ [BBC News]

The speech will come almost six months to the day after Mrs May invoked Article 50. Little progress has been made, with the next round of Brexit talks have been delayed to provide for this latest intervention. The speech is being made a month before the important EU Council summit on 22 October – when the EU27 leaders will discuss whether “sufficient progress” has been made to start trade talks. The UK needs the EU27 to determine that ‘sufficient progress’ has been made, as without it, no talks on future UK-EU trade deals can commence. However, at the conclusion of August’s round of negotiations, Michel Barnier said no decisive progress had been made. A breakthrough is now needed.

See: Next round of Brexit talks delayed by a week, Government confirms [Politics Home] It has been confirmed that both the EU and the UK have agreed the next round of Brexit talks will take place on 25 September. Negotiators from both sides had been expected to re-start their discussions on 18 September.

Parliamentary Corner:

Conservatives accused of ‘running scared’ after dodging votes on pay cap and tuition fees [Politics Home] The Conservatives have been accused of “running scared” of he UK Parliament after shying away front confronting two Commons votes they were set to lose. No Conservative forced a division following Labour-led debates on the public sector pay cap and tuition fees. This came after it was revealed that the DUP were planning to vote with Labour on both issues, robbing the Conservatives of their working majority.

Labour’s motions passed on Wednesday without being pushed to a vote after it became clear the government had no majority to oppose the call for an end to the public sector pay cap for NHS workers nor the £250 a year increase in student fees.

It is the first example of the DUP breaking with May since they struck a confidence and supply agreement to vote together on crucial legislation after the general election.

The question becomes: might Labour be able to exploit differences between the Conservatives and the DUP in the future in order to inflict future defeats on the Government?

Parliamentary… sovereignty?

Brexit: EU repeal bill wins first Commons vote [BBC News] On Tuesday morning, after two days of debate and around 100 MPs contributing, MPs backed the European Union (Withdrawal) Bill by 326 votes to 290. The Bill’s committee stage will take place when MPs return to Parliament after their party conferences. The Bill will be heard by a Committee of the Whole House, and around eight days have been set aside for the process.

From a NI perspective: all ten DUP MPs supported the Government. Lady Sylvia Hermon (Ind, North Down) supported Labour’s amendment, and voted against the Government.

The UK Government has won one battle, but has the war entire to still fight for. MPs have tabled 29 new clauses and 136 amendments to the EU (Withdrawal) Bill. Labour’s proposed amendments would deny ministers ‘Henry VIII’ powers, meaning the UK Parliament would have to vote to implement a withdrawal agreement and give some repatriated powers to the devolved assemblies. Those backed by Tories -including Dominic Grieve, Ken Clarke, Nicky Morgan and Anna Soubry – involve transposing the Charter of Fundamental Rights into UK law, limiting ministers’ powers to amend EU law, and a requirement for the final deal with the EU to be approved by Parliament.

And finally…

The UK Government won its crucial Commons vote on Tuesday night to give the Conservatives a majority on every law-making committee of the parliament, despite not having an overall majority in the House. The Conservatives had to rely on the 10 DUP MPs to ensure the motion was passed.

  • The UK Parliament goes into recess this afternoon, as party conference season gets underway. First up is the Liberal Democrats’ party conference (16th-19th September), followed by the Labour Party (24th-27th September). The Conservatives will gather later (1st-4th October).

Devolution revolution

The Scottish and Welsh devolved governments are teaming up once more. Scottish First Minister Nicola Sturgeon and Welsh First Minister Carwyn Jones previously issued joint statements opposing the European Union (Withdrawal) Bill in its current form when it was initially published, criticising its lack of provision for devolving powers to the devolved nations. Now, the two governments have published their respective legislative consent memos on the Bill. The Scottish memo can be read here. The Welsh memo can be read here.

Don’t bother looking for a statement or similar memo from Northern Ireland. Northern Ireland’s devolved government collapsed in January, and has not been functioning since the snap March election.

Today
The public inquiry into the Grenfell Tower fire opens this morning.

Inquiry Chair Sir Martin Moore-Bick is to make his opening statement at 10.30AM.

Whose Committee is it, anyway?

This week, all eyes were fixed on Monday’s Order Paper for the Commons – the second day of the second reading of the European Union (Withdrawal) Paper. The vital piece of legislation which the UK Government urgently needs to pass, and soon, in order to repeal the European Communities Act 1972, and so commence the lenghtly legal adventure of converting EU law into UK law.

As I write, the Bill is still being debated in the Commons. The vote is due to get underway around midnight – it will be tight, but it is expected to squeeze past, much to the relief of the Conservative Government, who will be aware that more battles over the Bill are just over the horizon, when it reaches Committee stage.

In fact, the Conservative Government might have to face down a battle even earlier than that. Tuesday evening of this week might just see a furious showdown in the Commons, all over membership of a Commons’ Committee: the Committee of Selection.

You see, losing the outright majority wrangled by her precedessor in June’s snap election made the Brexit process more difficult for Prime Minister Theresa May. Losing her majority does not just diminish her party’s representation and strength, both at home and abroad, or even votes which the Government can rely upon – it has cost her in strenght and representation across Commons’ Committees. However, the Conservative Government has seemingly devised a plan to help smooth parliamentary progress of any and all Brexit-related issues.

In what has been deemed a ‘power grab’ by angry Labour and Lib Dem MPs, the Conservatives are attempting to pack a crucial Commons committee with their own MPs.

A quick reminder: UK Commons Select Committee composition is proportional on the amount of seats received by each political party represented in the Commons. The UK Government – the party with the largest number of seats, normally with a majority – will occupy a majority of Committee members. Now, the Conservatives lost their outright majority in GE17, but are still the largest party. So they are still entitled to the most Committee members, but not the same number they would have had if they had retained their majority of seats.

And, without the number the Government had become accustomed to – an outright majority of Conservative MPs serving as veritable cheerleaders, cheering through the plethora of legislation needed to assist the UK’s EU exit through all stages of the process -the UK Government risks delays it cannot afford.

It’s solution? To slip in a motion to be voted on late on Tuesday night, which will give the UK Government a majority in standing committees — where important clause-by-clause legislative heavy lifting occurs.

Now arguably, if the Conservatives have an outright albeit slender majority through the confidence and supply agreement with the DUP, they are entitled to extra members on Committees.

Charles Walker, a Conservative MP and Chair of the Procedure Committee, spoke to POLITICO about the motion.

He said that whilst he expects “lively debate” he thinks the Conservative Government’s plan is a “reasonable proposition.” He explained the Government’s logic: through its deal with the DUP,  it has a working majority in the Commons, so it should also have a majority in the parliamentary Committees that scrutinise legislation. Under the current rules, the DUP group is too small to qualify for Committee seats, meaning that the Government falls short of seats.

Mr Walker added to POLITICO that without the motion, “you could potentially see the legislative process grind to a halt…The Government has to have a legitimate chance of getting its business through.”

However, the party itself did not win the outright majority required, so technically it cannot try and pack up the Committee of Selection. Parliamentary officials have advised the UK Government against carrying out the power-grab, but it’s going ahead anyway. Its critics, including Labour Leader Jeremy Corbyn say this plan is rigging the system.

What is the Committee of Selection? Well, the Committee of Selection decides whether the Government of the day has a majority on Committees for both statutory instruments (SIs), and primary legislation – without which, Ministers are unlikely to press ahead. The Committee basically arranges which statutory instruments (SIs) will be pushed through Parliament, and when.

As previously outlined, the European Union (Withdrawal) Bill essentially aims to convert EU law, which exists and operates in the UK, to UK law. It’s a piece of primary legislation, but there could be up to 1,000 ‘corrections’ to make in the process of law conversion, which the Conservative Government proposes to do through SIs – this is where the ‘Henry VIII’ powers come in. The Government has admitted there are no specific restrictions in the bill to prevent Ministers also changing aspects of law they “do not like”.

So, the power grab in question is the Conservative Government is trying to pack the Committee in such a way so the membership will favour the Government, and so ensure SIs are permitted for use in the future – SIs which, after all, lack scrutiny and debate of the level primary legislation is subjected to, and which could be misused by Government Ministers, especially those favouring a hard Brexit.

POLITICO says one senior Labour MP described the motion has “the biggest vote of this parliament.” Moreover, Conservative MPs have been told it is an unmissable vote.

It is set to be a Parliamentary showdown. However, if the motion passes, the Conservatives has won a battle, not the war.

After all, even if the UK Government manages to get its way on the Committee stage of Brexit-related bills, they must return to the Commons for report stage — which is just another chance to add amendments dilute the intention of the bill. Following that is the third reading, when MPs make the ultimate decision whether to support, or reject.

Whose Committee is it, anyway?