Wedlake Bell head of commercial litigation David Golten unpacks the first major blow for the Government's Brexit Bill.
In the first defeat for the government on its draft Brexit legislation, the House of Lords voted on 1 March by 358 to 256 to pass an amendment guaranteeing the rights of EU nationals living in the UK after Brexit. The House of Commons had earlier passed the Bill without amendment.
The government, which had attempted to persuade the Lords to follow the Commons' decision not to amend the Bill, said it was 'disappointed' with the result. It will seek to reverse the decision when the Bill goes back to the Commons later this month.
Final reading tomorrow
Before then, however, the Lords will have another opportunity to consider backing other possible amendments to the Bill. The Bill goes back to the Lords for the third (and final) reading of the Bill on 7 March. The most controversial of the additional amendments is an amendment which would give Parliament the right to vote (and therefore also to veto) any deal, or lack of a deal, which the government might recommend after concluding its negotiations with the EU following formal notice to exit the EU being given under Article 50.
The government's position is that the Bill has a straightforward purpose, namely to enact the referendum result by allowing the government to trigger Article 50 of the Lisbon Treaty and then negotiate whatever terms it can with the other EU member states.
The amendment backed by the Lords requires the government to introduce proposals within three months of Article 50 being triggered to ensure EU citizens in the UK have the same residence rights after Brexit as they do now. Conversely, the government believes it would be unwise to guarantee the rights of the three million or so EU citizens living in this country before other EU countries are ready to do the same for British citizens abroad.
There is no prospect of the government giving way.
Once the Bill has completed its passage through the Lords it will return to the Commons in its amended form, where amendments similar to those imposed and likely to be imposed by the Lords were defeated by the Government last time round. The Bill is expected to return to the Commons on March 13.
At that stage MPs will again debate and vote on the Bill in its amended form. There are two potential outcomes of that process. The first is that the Commons will accept the amendments sought to be imposed by the Lords. If that happens the Bill goes to the Queen for Royal Assent and will become law. That outcome is extremely unlikely however. The government has said in terms it will seek to overturn any amendments which the Lords seek to impose and, although the government has a small majority, it doesn't seem at this stage that there is any real appetite amongst a sufficient number of MPs on either side of the House standing up to ministers.
Additionally, while the Leader of the Opposition, Jeremy Corbyn, has said he welcomes the amendment introduced by the Lords, he is likely to impose a three line whip requiring Labour MPs to support the government's position, even though that position runs the risk of leaving the government and opposition vulnerable to the accusation that they are deaf to the concerns of the millions of EU citizens who live in the UK.
Taking the technical route
The way round this for government and opposition is the technical argument, consistently made by ministers, that the Article 50 Bill is only about allowing the government to serve notice of the UK's intention to exit the EU. It is not about any of the implications of that, for example what the terms of the trade deal (if we have one) with the EU will be, what will our immigration system will be, how fishing and farming will work and so on. These, the government will say, are questions which will need to be dealt with after the notice has been given, not as part of it.
If that happens the Bill will go back to the Lords in a process known as "ping pong". In theory the Lords can reject the decision of the Commons again, restore their amendments and even introduce new amendments. This is unlikely though as senior opposition peers have indicated they will not seek to defeat the Government again, which would mean the Bill in its unamended form becomes law on or soon after 15 March. This would mean that the Prime Minister will be able to invoke Article 50 immediately after that.
In the most controversial and emotive of debates and parliamentary processes, and notwithstanding the very strong feelings on either side, it is likely that the Bill will become law in its unamended form and that notice to exit the EU will be served under Article 50 this month.
David Golten, Head of Commercial Litigation at Wedlake Bell LLP.