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On 16th May, the House of Lords made its final amendments to the EU Withdrawal Bill.  During its passage in the Lords, the Government suffered 14 defeats during the report stage and one defeat at the third reading.  Peers also accepted 170 amendments that were proposed by the Government.

The amendments include;

• Customs Union: would prevent the European Communities Act 1972 from being repealed until the Government has made a statement to Parliament outlining the steps it has taken to negotiate the UK’s participation in a Customs Union with the EU. This would need to happen by 31st October 2018. The Government can of course outline the steps it has taken but that does not mean that it will force the UK into participating in a Customs Union.
• Challenges to retained EU law: if passed, it would remove the section of the Bill which enabled Ministers to use secondary legislation to establish when individuals could challenge the validity of EU law after exit day. Another proposed amendment would permit challenges to domestic law if it failed to comply with the general principles of EU law.
• Meaningful vote: Parliament must approve the Withdrawal Agreement and associated transitional measures in an Act of Parliament.  If possible, this must be done before the European Parliament has debated and voted on the Agreement.  It also includes specific deadlines for the Government for agreeing, and legislating for, the Withdrawal Agreement with the EU and that it ‘must follow any direction’ approved by the Commons.  This would give the Commons the power to decide the next steps for the Government.
• Future negotiations: would prevent secondary legislation to implement the Withdrawal Agreement until after Parliament has approved a mandate for negotiations about the future UK-EU relationship.
• Northern Ireland: preserves North-South co-operation after Brexit and prevents the establishment of new border arrangements which did not exist before exit day, unless they would be agreed between the UK Government and the Government of Ireland.
• Continuing relationship with the EU: to ensure that the UK could continue to replicate EU law, and to participate in EU agencies, after exit day. The former is seen as critical towards facilitating frictionless trade with the EU in agri-food products post-Brexit.
• European Economic Area (EEA): if passed, the amendment would force the Government to make continued participation in the EEA a negotiating objective. Again, just because something is an objective does not necessarily mean that it will come to fruition and is seen by many as an attempt to give the Commons the option of keeping the UK in the EEA (Single Market).
• Environmental principles: this would require the DEFRA Secretary to take steps to maintain the EU’s environmental principles in UK law post-Brexit and lists the specific principles which need to be given effect in domestic law. This amendment was passed as Peers argued that the ‘Environmental Principles and Governance after EU Exit’ published in a recent consultation document by DEFRA were inadequate, as it would subordinate the environment to housing and economic growth. This consultation document only makes limited reference to agriculture, primarily in the context of adopting sustainable land management systems. The document is available via: https://consult.defra.gov.uk/eu/environmental-principles-and-governance/
• Devolution: proposed by the Government, this would give UK ministers the power to put temporary restrictions on the devolved administrations’ ability to legislate in certain devolved policy areas returning from the EU. The Government argues that these temporary restrictions are needed to prevent divergence across the UK as new frameworks are established. Whilst agreement has been reached with the Welsh Government on this, the Scottish Government is opposed. This amendment would potentially have significant implications for agricultural policy which is currently administered by the devolved regions. Greater control at the UK level would limit the extent to which agricultural policies in the four UK nations would diverge post-Brexit. It is also important in the context of food and animal health standards as any internal divergence in the UK would create headaches for the implementation of sanitary and phytosanitary standards for instance.

After the Bill has passed through the Lords, the Prime Minister appointed 10 more Conservative peers in an attempt to bolster her numbers. This will not make much difference to the Withdrawal Bill which will now be sent back to the Commons for consideration of the proposed amendments.  It is unclear exactly what the timeline will be as it had been hoped that the Bill could receive Royal Assent before the summer recess.  That target now seems unlikely.  It remains to be seen how many of the Lords’ proposed amendments will get acceptance from the Commons.  However, the stakes have been raised, and the greater the number of amendments, the greater the probability that the Government will lose on one or more of them.