European Union (Withdrawal) Bill

Eleanor Laing Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Jenny Chapman (Darlington) (Lab)]

I beg to move, That the clause be read a Second time.

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 65—Role of Joint Ministerial Committee—

“(1) The Joint Ministerial Committee is to be a forum—

(a) for discussing—

(i) the terms upon which the United Kingdom is to withdraw from the European Union and the United Kingdom’s future relationship with the European Union;

(ii) proposals to amend retained EU law;

(iii) agreed legal and policy frameworks in relation to the subject matter of devolved retained EU law that are to operate throughout the United Kingdom;

(iv) a concordat setting out the process for concluding the legal and policy frameworks mentioned in sub-paragraph (iii); and

(b) for seeking a consensus on those matters between Her Majesty’s Government and the other members of the Joint Ministerial Committee.

(2) Before Her Majesty’s Government concludes a withdrawal agreement, the Secretary of State must produce a document for consideration by the Joint Ministerial Committee setting out—

(a) Her Majesty’s Government’s objectives and strategy in negotiating and concluding a withdrawal agreement;

(b) Her Majesty’s Government’s objectives and strategy in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;

(c) the steps Her Majesty’s Government intends to take to keep the Joint Ministerial Committee informed of progress in reaching a withdrawal agreement;

(d) the steps Her Majesty’s Government intends to take to consult each member of the Joint Ministerial Committee before entering into a withdrawal agreement and for taking the views of each member into account;

(e) the steps Her Majesty’s Government intends to take to seek the approval of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly before entering into a withdrawal agreement.

(3) Until a withdrawal agreement is concluded, the Secretary of State must produce a report every three months for consideration by the Joint Ministerial Committee setting out—

(a) Her Majesty’s Government’s assessment of the progress made against Her Majesty’s Government’s objectives—

(i) in negotiating and concluding the withdrawal agreement;

(ii) in relation to establishing a framework for the United Kingdom’s future relationship with the European Union;

(b) any change to the matters listed in paragraphs (a) to (e) of subsection (2).

(4) Before concluding a withdrawal agreement the Prime Minister must produce a document setting out the terms of the proposed agreement for consideration by the Joint Ministerial Committee.

(5) Meetings of the Joint Ministerial Committee must, until Her Majesty’s Government concludes a withdrawal agreement, be chaired by—

(a) the Prime Minister, or

(b) the Secretary of State for Exiting the European Union.

(6) In this section, “the Joint Ministerial Committee” means the body set up in accordance with Supplementary Agreement A of the Memorandum of Understanding on Devolution, between Her Majesty’s Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive Committee.”

This new clause would put the Joint Ministerial Committee’s role in the withdrawal process on a statutory footing.

Amendment 42, in clause 11, page 7, line 16, leave out subsections (1) to (3) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.

(3) In section 6(2)(d) of the Northern Ireland Act (no competency for the Assembly to legislate incompatibly with EU law, omit ‘is incompatible with EU law’.”

This amendment removes the Bill’s proposed restrictions on the ability of the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly to legislate on devolved matters.

Amendment 164, page 7, line 16, leave out subsections (1) and (2) and insert—

“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for Scottish Parliament to legislate incompatibly with EU law), omit ‘or with EU law’.

(2) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for National Assembly for Wales to legislate incompatibly with EU law), omit ‘or with EU law’.”

This amendment would replace the Bill’s changes to the legislative competence of the Scottish Parliament and the National Assembly for Wales in consequence of EU withdrawal, by removing the restriction on legislative competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.

Amendment 132, page 7, line 19, leave out from “law)” to end of line 29 and insert

“omit ‘or with EU law’”.

This amendment is intended to remove the proposed bar on the Scottish Parliament legislating inconsistently with EU law after exit day.

Amendment 90, page 7, leave out lines 22 to 29 and insert—

“‘(4A) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 5 to the Scotland Act 1998.’”

This amendment would remove the restrictions on the Scottish Parliament modifying retained EU law except in relation to matters that are reserved.

Amendment 133, page 7, line 33, leave out from “law)” to end of line 7 on page 8 and insert

“omit ‘or with EU law’”.

This amendment is intended to remove the proposed bar on the National Assembly for Wales legislating inconsistently with EU law.

Amendment 91, page 7, leave out from beginning of line 36 to the end of line 7 on page 8 and insert—

“‘(8) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedule 7A to the Government of Wales Act 2006.’”

This amendment would remove the restrictions on the National Assembly for Wales modifying retained EU law except in relation to matters that are reserved.

Amendment 134, page 8, line 9, leave out from “Assembly)” to end of line 28 and insert “omit subsection 2(d)”.

This amendment is intended to remove the proposed bar on the Northern Ireland Assembly legislating inconsistently with EU law.

Amendment 92, page 8, leave out lines 14 to 28 and insert—

“‘(6) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law which relates to matters specified in Schedules 2 or 3 to the Northern Ireland Act 1998.’”

This amendment would remove the restrictions on the Northern Ireland Assembly modifying retained EU law except in relation to matters that are reserved or excepted.

Amendment 72, page 8, line 28, at end insert—

“(3A) This section shall not come into effect until—

(a) the Scottish Parliament has passed a resolution approving the provisions in subsection (1);

(b) the National Assembly for Wales has passed a resolution approving the provisions in subsection (2); and

(c) the Northern Ireland Assembly has passed a resolution approving the provisions in subsection (3).”

Amendment 337, page 8, line 33, at end insert—

“(6) Subsections (1), (2) and (3) shall not come into force until the exit day appointed for the purpose of this section, which must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”

This amendment, alongside Amendment 42 and NC64, would establish that the UK Government has until the end of transitional arrangements to create any UK-wide frameworks.

Clause 11 stand part.

Amendment 165, in schedule 3, page 25, line 37, leave out paragraphs 1 and 2 and insert—

“1 In section 57(2) of the Scotland Act 1998 (no power for members of the Scottish Government to make subordinate legislation, or otherwise act, incompatibly with EU law or Convention rights), omit ‘or with EU law’.

2 In the Government of Wales Act 2006, omit section 80 (EU law).”

This amendment would replace the Bill’s changes to the executive competence of the Scottish Ministers and Welsh Ministers in consequence of withdrawal from the EU, by removing the restriction on competence relating to EU law and ensuring that no further restriction relating to retained EU law is imposed.

Amendment 183, page 28, line 2, leave out from first “and” to end of line 3.

This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change a heading in the Scotland Act 1998 to remove a reference to retained EU law.

Amendment 184, page 28, line 38, leave out from “(d)” to end of line 39 and insert

“omit ‘or with EU law’”.

This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would change the definition of devolution issues in the Scotland Act 1998.

Amendment 185, page 29, line 5, leave out paragraph 21.

This consequential amendment, linked to Amendments 164 and 165 to Clause 11 and Schedule 3, would enable changes to the procedure for subordinate legislation in the Scotland Act 1998.

Amendment 186, page 29, line 28, leave out from “subsection” to end of line 29 and insert “(4), omit paragraph (d)”.

This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making section 58A (4)(d) of that Act redundant.

Amendment 187, page 30, line 4, leave out

“before ‘EU’ insert ‘Retained’”

and insert “omit ‘EU law’”.

Amendment 165 omits section 80 of the Government of Wales Act 2006. This amendment would amend the changes made to the heading before section 80 to reflect the omission of section 80 of the Government of Wales Act 2006.

Amendment 188, page 30, line 5, leave out paragraph 31.

This amendment makes a change consequential on Amendment 165, which would omit section 80 of the Government of Wales Act 2006, making paragraph 31 of Schedule 3 in this Bill redundant.

That schedule 3 be the Third schedule to the Bill.

Amendment 177, in schedule 2, page 19, line 47, leave out “and retained EU law”.

This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3.

Amendment 178, page 20, line 23, leave out “and retained EU law”.

This is a consequential amendment linked to Amendments 164 and 165 to Clause 11 and Schedule 3..

Amendment 179, page 23, line 21, leave out “and retained EU law”.

This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.

Amendment 180, page 23, line 25, leave out

“and section 57(4) and (5) of that Act”.

This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.

Amendment 181, page 23, line 31, leave out “and retained EU law”.

This is a consequential amendment linked to amendments 164 and 165 to Clause 11 and Schedule 3.

Amendment 182, page 23, line 35, leave out “80(8)” and insert “80”.

This consequential amendment, linked to amendments 164 and 165 to Clause 11 and Schedule 3, changes the reference to section 80 of the Government of Wales Act 2006 to make clear that the restriction on the powers of the Welsh Ministers not to act or legislate incompatibly with EU law is removed.

Amendment 189, in schedule 8, page 50, line 19, leave out

“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.

This amendment and Amendment 190 are in consequence of Amendment 165 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers would apply.

Amendment 190, page 51, line 1, leave out

“section 57(4) of the Scotland Act 1998, section 80(8) of the Government of Wales Act 2006 or”.

This amendment and Amendment 189 are in consequence of Amendment 165 to Schedule 3 as no restriction relating to retained EU law on the making of subordinate legislation by the Scottish Ministers and the Welsh Ministers will apply.

Amendment 191, page 55, leave out lines 8 to 13 and insert—

(a) in paragraph (a), omit sub-paragraph (ii), and

(b) in paragraph (b), omit “or with EU law”.”.

This amendment would amend the Criminal Procedure (Scotland) Act 1995 on the right of the Advocate General to take part in proceedings in consequence of removing the restriction on the competence of the Scottish Parliament and Scottish Government by Amendments 164 and 165 to Clause 11 and Schedule 3.

Amendment 192, page 59, leave out lines 10 to 16.

This amendment, with Amendments 193, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.

Amendment 193, page 59, leave out lines 23 to 29.

This amendment, with Amendments 192, 194 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.

Amendment 194, page 59, line 47, leave out from beginning to end of line 8 on page 60.

This amendment, with Amendments 192, 193 and 195, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.

Amendment 195, page 60, leave out lines 13 to 23.

This amendment, with Amendments 192, 193 and 194, is in consequence of Amendments 164 and 165 to Clause 11 and Schedule 3 which would remove the powers to make an Order in Council to adjust the new restriction on the legislative competence of the Scottish Parliament and the National Assembly for Wales.

[Jenny Chapman]

It is a pleasure to serve under your guidance, Mrs Laing. I will speak to new clauses 64 and 65, as well as to amendments 42 and 337, which stand in my name and those of my right hon. and hon. Friends.

New clause 64 would establish a collaborative procedure for the creation of UK-wide frameworks. It would require that the Secretary of State must lay before each House proposals for replacing European frameworks with UK ones. We need those frameworks to enable the functioning of the UK internal market; to ensure compliance with international obligations; to ensure the UK can negotiate and enter into international treaties, or, if we leave the customs union, trade agreements; to enable the management of common resources; to administer and provide access to justice in cases with a cross-border element; and to safeguard the security of the UK. The frameworks will have a significant impact on the carefully constructed devolution settlements in the Union. They must be created in collaboration with the devolved Administrations.

The birth of devolved Governments in Scotland, Wales and Northern Ireland was a significant change to the running of the United Kingdom. The then Scottish Secretary, Donald Dewar, battled to extract powers from Whitehall mandarins, who attempted to cling on to them. Then, as now, the default position of Whitehall is to hold on to power whenever possible. There are those who believe that this pro-Whitehall centralising tendency, on display yet again in clause 11, is evidence of the Tories’ reluctance to engage with devolved Administrations, or, even worse, that it signals a persistence of their initial opposition to devolution as a point of principle.

I am pleased to say that I am not one of those people. I believe we have come a long way since 1997, thanks in large part to the persistence of Donald Dewar and others. I sense that the Government’s decision to withhold retained EU powers in Whitehall is not an anti-devolution stance, but instead one of the clearest indications yet that the Government are just not coping with the task of Brexit. The Government simply have not had the ministerial headspace—or, as Alan Milburn said, the bandwidth—to engage with the consequences of Brexit for the established, yet still young, devolution settlements now in place.

--- Later in debate ---

[David T. C. Davies]

I would be delighted to explain, but I probably will not be able to today. It is a lovely idea, and I would be more than happy to spend 20 minutes or so on it, but—

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. I do not think that the hon. Gentleman would like to tell the Committee that at this point. We will stick to the matter in hand for the moment.

[David T. C. Davies]

Let me return to the matter in hand for a minute, because the hon. Member for Clwyd South (Susan Elan Jones) was also there for the underwhelming vote for devolution in 1999, and she will surely recall that the Conservative party did not call for a second referendum. We did not threaten to drag the whole thing through the courts to get the judges to overrule the will of the people of Wales. We were not going around pretending that people had changed their minds and saying that we needed to run the whole thing over again. We did not say that we were going to drag the whole thing out and do everything possible to undermine it. In actual fact, Nick Bourne, who was then the leader of the Welsh Conservatives and is now a Member of the other place, sat down with Members of all parties on the National Assembly advisory group and helped to draw up the Assembly’s Standing Orders, most of which are now in place. That is the difference between the Conservative party’s approach when we were on the losing side of a referendum and the approach of the Labour party, the SNP and many others now that they are on the losing side.

The reality is that the change will be called a power grab. I did not hear the phrase used today, but it will be described as a power grab. Of course it is a power grab, and what a wonderful power grab it is, too. We are grabbing powers from Brussels and bringing them back to London. Not only that, but over the next few years—[Interruption.] SNP Members can shout all they like; I am waiting for one of them to intervene.

--- Later in debate ---

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. I hesitate to interrupt the right hon. Gentleman, but he knows what I am going to say: I am not going to trample over anyone—well hardly anyone—this afternoon. I would be grateful if he addressed the Government as the Government.

[Ian Blackford]

My sincere apologies, Mrs Laing. You are right to reprimand me, and I apologise. I am talking about the powers that the Government are taking back—the naked power grab that is taking place against the Scottish Government.

--- Later in debate ---

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Order!

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. I am always grateful for the help of the hon. Member for Paisley and Renfrewshire North (Gavin Newlands). Thank you very much. Mr Masterton must have a chance to answer the point made by Ms Cherry before we have any further interventions, although there will probably be another one in a moment.

[Paul Masterton]

Again, I draw the attention of the hon. and learned Member for Edinburgh South West (Joanna Cherry) to the fact that I said that most of the 111 powers are technical and regulatory. They cover areas either where divergence in policy between UK and Scottish Government Ministers would not be a threat to the integrity of the UK internal market, or where consistency could be maintained through non-legislative options. Those powers should be devolved to the Scottish Parliament on exit day, or as close to it as can safely and realistically be achieved.

In respect of those powers where there is a legitimate UK interest in uniformity across the UK—that is, where divergence between the nations of the UK would be contrary to the UK’s interests—it would be unsafe to allow them to be devolved without providing for constraints on how they may be used. It is in those cases that we will need common frameworks, a concept accepted as necessary by UK, Scottish and Welsh Ministers. Aspects of agriculture and fisheries are among the examples where it has been accepted that there will be a need for common frameworks.

As confirmed to the Scottish Affairs Committee by the Secretary of State for Scotland, if the frameworks are to be acceptable to the Scottish and Welsh Governments, they will have to be negotiated and agreed, not imposed top down by the UK Government. That suggestion is fairly straightforward. Each of the 111 powers will either fall to be wholly devolved to the Scottish Parliament, or the UK will step into the shoes of the EU, replacing an EU-wide framework with a new UK-wide framework, for which administrative competence will largely rest with the Scottish Parliament.

Although we will not seek to amend clause 11 at this stage, we will, in exchange for supporting the Government on amendments 164 and 165, require confirmation from Ministers that they will expedite discussions with the Scottish Government further. We seek quick progress, looking ahead to the next JMC (EN) in December and into January, and in any event certainly before the debate on Report.

My focus at this stage is very much on the framework negotiations running parallel to this debate, but I ask that the UK Government give me the assurances I seek that they will move forward urgently through the JMC (EN) with, first, identifying and agreeing areas where there is a need for legislative common frameworks; secondly, recognising that the other powers can be devolved immediately on EU exit, including as many of those where non-legislative solutions on maintaining consensus have been agreed; and thirdly, settling how the common frameworks will be agreed. I expect an assurance on the first two issues to be given by the debate on Report, and if the third has not been given by then, I expect clear and significant progress to have been made.

In time, clause 11 will need to be replaced to reflect that, but I recognise that its final form will be linked to the points I have listed, so I do not ask for, or expect, that change to be made now. Looking ahead, once agreement is reached on where frameworks are needed and how they will be agreed, I believe that clause 11 should include a draft default setting, so that the power would be held by UK Ministers until a common framework is agreed. Crucially, however, that default setting could apply only in areas where it was established that there should be a common framework and the mechanisms to reach agreement on a framework have failed.

A lot of work needs to happen between now and then, primarily on moving the frameworks on through the JMC (EN). That is why my focus will stay on that for now. I say again, however, that my vote against amendments 164 and 165 tonight is conditional and must not be taken as support for clause 11 as it stands.

--- Later in debate ---

[Mike Gapes]

Is my hon. Friend aware that the Taoiseach, Leo Varadkar, has said:

“I am surprised and disappointed that the British government now appears not to be in a position to conclude what was agreed earlier”—

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order. The hon. Gentleman might be making an interesting point, but it is not directly relevant to the new clause.

[Ian Murray]

Thank you, Mrs Laing. If I may, I will respond to what the Taoiseach said just by saying I am surprised that he is disappointed, but not surprised that he is surprised.

--- Later in debate ---

[Stephen Doughty]

Has my hon. Friend noticed that the Minister who has apparently been briefing Conservative Members has just appeared in the Chamber? Perhaps he could give us some answers about what has been going on in Brussels today.

[The First Deputy Chairman]

Order. No he cannot. We are discussing new clauses and amendments to the Bill, not what people are seeing on Twitter. If the Prime Minister has anything to report to the House, I am sure that she will come at the earliest opportunity to give such a report.

[Ian Murray]

I am grateful to you, Mrs Laing. I apologise to the Committee for digressing, but these are incredibly important matters—and actually they are directly connected to my amendments, because they about keeping the devolved Administrations informed and involved in the process.

The hon. Member for East Renfrewshire said he was seeking reassurances. What we have seen since lunch time should give him cause for concern that no assurances will be forthcoming, which is why we must put in the Bill the requirement that the Government keep the devolved Administrations properly informed. This is about not just the devolved Administrations, but the people they represent.