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Kicking the can down the road


What is the state of play with the European Union (Withdrawal) Bill following this week's votes on amendments made to the legislation in the House of Lords? And how do these developments affect the bigger picture on Brexit?

The current state of the Bill

The majority of the amendments made by the House of Lords have been rejected by the House of Commons, including those which would have required the government to seek membership of the EEA and to seek a customs union with the EU.

However, amendments have also been tabled to the Taxation (Cross-Border) Trade Bill which – if passed – would require the government to seek a customs union with the EU. It is therefore likely that MPs will have a chance to revisit this issue when debating that Bill. For more background on Brexit and customs arrangements, see our Q&A here.

Northern Ireland

Amendments to some of the provisions dealing with Northern Ireland were accepted, albeit with some changes.  Some pro-Remain MPs have argued that these provisions could be sufficient to keep the UK within the Single Market, because they state that no new "physical infrastructure" can be put in place on the border between Northern Ireland and the Republic of Ireland which is "not in accordance with an agreement with the United Kingdom and the EU." Their argument appears to be that the only way for the UK government to comply with this clause would be for the UK to remain within the Single Market, at least for goods.

Brexiters, however, are likely to take a different view. For example, some have insisted that the border could be policed with mobile technology such as drones or devices in lorry cabs and any new physical infrastructure to carry out checks  would be away from the border (and thus arguably beyond the scope of the clause). Although many commentators doubt the practicality of such an approach, it may explain why the government only sought to modify the amendment, rather than to remove it altogether. The government may also take the view that if necessary, it could enact further primary legislation to amend or repeal the relevant provisions.

The "meaningful vote"

As widely reported, the government offered a concession in relation to an amendment to the Bill designed to prevent Parliament being faced with a "take it or leave it" choice in relation to any deal agreed by the government with the EU later this year. The thinking behind this amendment is that Parliament should not be forced to choose between a "bad deal" and "no deal at all" (which many MPs would regard as worse than a bad deal) – and that they should have the option of asking the government to initiate further discussions with the EU to avert a "no deal" scenario. However, backbench Conservative MPs are reported to be unhappy with the government's proposed wording.

What happens next?

The Bill will now return to the House of Lords for its consideration of the changes made in the House of Commons. Given the concerns of backbench MPs on the government's "meaningful vote" amendment, the House of Lords may well reject those changes and table alternative wording. This would need to be considered again by MPs, effectively allowing them a "second bite of the cherry" on the same issue. Although ultimately, the House of Commons has the power to overrule the House of Lords, this can only occur where the same legislation is tabled again in the next session of Parliament. As the current Parliamentary session is not scheduled to end until 2019, it is difficult to see how there could be time for this procedure to be used in relation to the Bill.

The bigger picture

Even if the government manages to avoid defeat on the issue of the "meaningful vote" when the Bill returns from the Lords, there remains potential for it to be defeated on issues such as customs arrangements, when these are next considered by the House of Commons. More generally, there remains a great deal to negotiate with the EU on Brexit in a very short space of time – and there is only so much longer that the government can continue to just "kick the can down the road" in relation to the key outstanding issues. If the government cannot demonstrate that significant progress has been made by the end of this month, a confrontation with MPs later this year may be unavoidable.

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