Corresponding powers involving devolved authorities

European Union (Withdrawal) Bill – in the House of Commons at 4:00 pm on 16th January 2018.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs) 4:00 pm, 16th January 2018

I beg to move amendment 49, page 17, line 13, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

With this it will be convenient to discuss the following:

Amendment 50, page 17, line 18, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendments 21 to 27.

Amendment 51, page 22, line 39, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 52, page 22, line 43, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 28.

Amendment 53, page 25, line 12, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 54, page 25, line 16, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Government amendment 29.

Amendment 3, in clause 11, page 7, line 23, 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”.

(4) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(5) UK-wide frameworks shall be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market,

(b) ensure compliance with international obligations,

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties,

(d) enable the management of common resources,

(e) administer and provide access to justice in cases with a cross-border element, or

(f) safeguard the security of the UK.

(6) Ministers of the Crown shall create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations.”

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 and creates new collaborative procedures for the creation of UK-wide frameworks for retained EU law.

Amendment 6, page 7, line 23, 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 13, page 7, line 23, 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”.

(3A) The Secretary of State must lay before each House of Parliament proposals for replacing European frameworks with UK ones.

(3B) UK-wide frameworks will be proposed if and only if they are necessary to—

(a) enable the functioning of the UK internal market, while acknowledging policy divergence;

(b) ensure compliance with international obligations;

(c) ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;

(d) enable the management of common resources;

(e) administer and provide access to justice in cases with a cross-border element; or

(f) safeguard the security of the UK.

(3C) Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore—

(a) be based on established conventions and practices, including that the competence of the devolved institutions will not be adjusted without their consent;

(b) maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; and

(c) lead to a significant increase in decision-making powers for the devolved administrations.

(3D) Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland by—

(a) recognising that Northern Ireland will be the only part of the UK that shares a land frontier with the EU; and

(b) adhering to the Belfast Agreement.

(3E) UK-wide frameworks will be created jointly by the sitting devolved administrations and Ministers of the Crown, with the agreement of all parties involved.”

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 and creates a new collaborative procedure for the creation of UK-wide frameworks for retained EU law using the principles as agreed at the Joint Ministerial Committee (EU Negotiations) on 16 October 2017.

Amendment 44, in clause 7, page 5, line 7, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations under Clause 7 when it is necessary to do so.

Amendment 5, page 6, line 18, after “it”, insert—

“( ) modify the Scotland Act 1998 or the Government of Wales Act 2006,”.

This amendment would prevent the powers of a Minister of the Crown under Clause 7 of the Bill to fix problems in retained EU law from being exercised to amend the Scotland Act 1998 or the Government of Wales Act 2006.

Amendment 45, in clause 8, page 6, line 33, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 46, in clause 9, page 7, line 3, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 47, in clause 17, page 14, line 15, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 48, page 14, line 22, leave out “appropriate” and insert “necessary”.

This amendment would ensure that Ministers can only bring forward regulations when it is necessary to do so.

Amendment 11, in clause 19, page 15, line 11, at beginning insert—

“(1) Subject to subsection (1A)”.

This amendment is consequential to Amendment 12 to Clause 19 that requires legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Amendment 12, page 15, line 18, at end insert—

“(1A) None of the provisions in this Act may come into force until the Prime Minister is satisfied that resolutions have been passed by the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly, signifying consent to the Act unless—

(a) direct rule is in place;

(b) the devolved administration has been formally suspended; or

(c) if the devolved administration has been dissolved for reasons other than recess or an election.”

This amendment requires the Prime Minister to gain legislative consent from the sitting devolved administrations before any of the provisions in this Act come into force.

Government amendments 14 to 20, 30 to 32 and 34.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs)

The amendments I have tabled go to the heart of concerns that many Members have about the wide powers afforded to the Executive by clause 9, schedule 2 and other parts of the Bill in relation to secondary legislation. The purpose of my amendments is to ensure that Ministers can only bring forward regulations under clause 7 and the like when it is “necessary” to do so, rather than when it is “appropriate”. The word “appropriate” is too wide.

These issues were discussed in Committee, but—surprise, surprise—it was very difficult to get a straight answer from Ministers about why they were so wedded to the word “appropriate” and were not interested in changing it to the word “necessary”, as supported by many organisations including Justice and the Law Society of Scotland. The change would also reflect judicial concerns about the breadth of discretion that the judiciary would be given if they had to determine whether something was “appropriate” rather than “necessary”. This will be subject to judicial review because we are talking about secondary legislation. I tried in vain in Committee to get the Minister to say what was meant by “appropriate”. He referred me to the dictionary definition, but that is simply not good enough.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

It seems to me, and I am sure the hon. and learned Lady will agree, that as far as the Government are concerned, “appropriate” means, “We’ll tell you what we’re going to bring in front of you.”

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs)

The hon. Gentleman is absolutely right. That is the gravamen of the concern. The Government are given too much discretion to decide what they consider is appropriate, rather than what is necessary for the purposes of the Bill.

I have no doubt that, later in the debate this afternoon, a Minister will rise to reassure me and others that the Government would never do anything inappropriate, but I think we know what we all think about that. And I am talking not just about this Government; all Governments, particularly when afforded too much Executive power, will seek to abuse it—that is in the nature of the Executive.

In Committee, I was rather struck by a sweeping statement by Sir Oliver Letwin, who said that, apparently, we all know what “appropriate” means and that the courts will know what it means. If that is so, why does the Minister not tell us what “appropriate” means in this context? Many distinguished lawyers have said that the courts will not know, and the judiciary themselves have expressed concern about the breadth of discretion given to the Government by the use of the word “appropriate” rather than the word “necessary”.

The matter has been raised by the Delegated Powers and Law Reform Committee, which recommended that the power in clause 7

“should only be available where Ministers can show that it is necessary to make a change to the statute book”.

I have no doubt that an amendment on that will be forthcoming in the House of Lords, but as I said earlier in the debate, it is important that this democratically elected and accountable House debate these matters and that we get some colour from the Government on their position.

The issues raised by the amendment have also been referred to by the Scottish Parliament’s Finance and Constitution Committee, which has produced an interim report on the Bill and supported the recommendation. I think that I am right in saying that the report was supported by a number of Conservative Members of the Scottish Parliament, so this is not really a party political issue. I do not want us to withdraw from the EU, but I recognise the need for this legislation if we are going to do so, and this amendment seeks to circumscribe Executive power.

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

I can see the hon. and learned Lady’s point that, in the light of the changes that the Government have made to clause 7, it may be appropriate to change “appropriate” to “necessary” in the schedule. However, will she confirm that her amendment 49 does that for devolved authorities’ Ministers, not for the Crown, and that that comes later in the sequence of amendments?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs)

Yes. What is sauce for the goose is sauce for the gander. It would not be very consistent if I thought that the British Executive should not get sweeping powers but the Scottish Executive should. All these arguments about curtailing Executive power apply to all Governments in these islands, not just to this Government. At the moment—my hon. Friend Stephen Gethins will address these matters later—the Scottish Government are getting precious few powers in relation to these matters, and that is a grave concern. However, others will address that later.

The Solicitor General said he had listened with care to what was said about this issue in Committee, so what will Ministers do about it? Have they spoken to the judiciary about this? Have they taken on board the judiciary’s concerns about the scope of discretion granted to them and their fear of that, given recent politically motivated attacks on the judiciary? Have Ministers taken on board the concern expressed on both sides of this House and by many organisations outwith it about the broad scope of the powers currently afforded?

As I said, I have no doubt that these concerns will be raised in the Lords, but now is the time for the Government to tell this democratically elected and accountable House what they are going to do to circumscribe the exercise of Executive power in this Bill.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

I will speak only briefly to somewhat lament the fact that we have not made more progress on this clause 11 issue. Let me explain the background. The Public Administration and Constitutional Affairs Committee has taken an interest in this matter. We have taken an extensive interest in the inter-institutional relations between the different Parliaments of the United Kingdom and the different Administrations of the United Kingdom, which is a very undeveloped part of our constitution. We have the legal framework, but we do not have the practices, the culture or the institutional underpinning. The debate about the legislative consent motions in relation to this legislation has shown that up to a degree.

I pay tribute to my right hon. Friend Damian Green, recently departed from the Government, who played a crucial role in making considerable advances on the question of how the legislative consent motions in support of this proposed Act of Parliament should be supported by the devolved Parliaments. It seems to me that the process has stalled somewhat, and it is unfortunate that we do not have the Government or others tabling amendments at this stage of the scrutiny of the Bill, when some of us had hoped that that would be the case. I am bound to say that it may reflect the fact that there is not yet a consensus, and it would be more important to reach a consensus on this matter than to table some amendments that do not reflect a consensus.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

I totally understand the wish, perhaps, to have had more discussion or debate before bringing amendments, but is that not an argument for putting back this debate, rather than that these amendments should come up in the Lords, where not just Scotland’s governing party but all Scottish MPs cannot take part in the debate?

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

I do wish that the Scottish National party would take up its option of positions in the other place, so that it could—

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

No—so that the SNP could be represented in the other place, because I have no doubt that this matter will be addressed there. But I agree; I think that is unfortunate and that it would have been preferable for it to have been developed here.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

Even if the SNP were in the Lords, it is the representatives here who are elected, and representatives from all Scottish parties are disfranchised by the amendment’s not being moved today.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

I accept that. Whatever compromise or proposals emerge in the other place, we can either debate them, vote on them and accept them, or we can debate them, vote on them, reject them and send back our own proposals to the other place at that point, so this House will have an opportunity to debate this very fully—just as fully as on Report.

This is, ultimately, a question of trust. We need to build up trust. Whatever the future holds for our United—or disunited—Kingdom, there need to be relationships of trust between the four Parliaments of these islands, the four Administrations of these islands, to enable us to make our way in the world as effectively as possible after we have left the European Union. That trust is still somewhat lacking in those relationships, and there may be one or two who want to foment distrust for their own political reasons. That makes getting this sorted out in an amicable way more challenging, but all the more necessary.

Photo of Martin Whitfield Martin Whitfield Labour, East Lothian

Is not trust based on experience, and is not the experience that we have witnessed over the past few weeks disappointing in that building of trust?

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

We have come a long way since the Government first published the Bill in draft last summer, when there were very peremptory conversations with the devolved Administrations and they felt very unconsulted about the Bill that had been published. There has been quite a lot of trust building and discussion, and the meetings of the Joint Ministerial Committee, which has discussed these matters and produced joint memorandums, shows that the trust is capable of building. I do think we have gone backwards a little bit in recent weeks, but I hope that the work that my Committee is doing will help. My Committee is going to Cardiff at the beginning of February and then we will be making an official visit, following an unofficial visit late last year, to Edinburgh, to build up these relationships and these understandings between the different Parliaments and the different Administrations. I do hope that in the end we can arrive at the right destination.

Photo of Stewart Hosie Stewart Hosie Scottish National Party, Dundee East

I welcome the Committee Chair’s taking his Committee formally and informally to Edinburgh and I agree with what he says about trust, but I hope that he agrees with me and my party that trust would be ably demonstrated if the Government had tabled an amendment, committing to deliver all the 111 powers to the devolved Administrations.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

Trust is about what is offered to the other party. In this case, the Government have been consistently misconstrued. Given the drafting, clause 11 can be read as though the Government intended to hold on to the 111 powers for all time, withholding them from the Scottish Government, but the Government have repeatedly said that that is not the case. My Committee has also consistently said that the Government’s intention is that the devolved Administrations and Parliaments should finish with substantially more powers as a result of leaving the EU than they had before.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down 5:00 pm, 16th January 2018

We have not had a functioning Assembly in Northern Ireland for a year—since January 2017. How exactly does the hon. Gentleman and his Committee expect to build up trust with the Northern Ireland Assembly? How is that going?

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

It is very problematic. My Committee has repeatedly attempted to make an official visit to the Province, but that has not been regarded as expedient at this time. However, I sometimes run into the hon. Lady and I talk to other elected representatives of the Province; I hope that there is, at least within this House, trust and understanding between the democratically elected representatives on this matter. However, I invite the hon. Lady to a further conversation offline. We are continuing our inquiry and our work.

I make it clear to my party’s Front Benchers that I expect amendments to be tabled to clause 11 to clarify how long the powers should exist. Why is there not a sunset provision at the end of clause 11, so that it is seen clearly as a temporary expedient and not a final destination? Why is there not some qualification to the powers that have been retained, to show that they are for a particular purpose rather than just a blanket withholding?

As I said in Committee, it was instructive that even the work commissioned by the Scottish Parliament demonstrated that most of the powers being recovered from the EU—those with relevance to the UK single market, for example—are naturally reserved powers. We are dealing here with only a relatively small proportion, albeit on significant matters such as the environment, farming and fisheries.

This is an important test for the relationship between Whitehall and its counterparts elsewhere in the United Kingdom—and, indeed, with this Parliament, because the relationship between the Parliaments is just as undeveloped, possibly even less so, than the relationship between the Governments. The Governments have to work together, and on the island of Great Britain we have a single civil service that naturally works together. But the idea of the Parliaments of the United Kingdom working together is a completely alien concept and has not yet come into our political idiom at all.

Our Committee continues to work on the issue. I hope that we shall make some radical recommendations to help us learn from other, decentralised systems of government in other countries. This is in the DNA of their constitutions. We need to develop the same facility, so that after we leave the European Union and the powers have been devolved, the four parts of the United Kingdom work effectively and harmoniously together for the common good and the future of our country.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

The biggest scandal about clause 11 is that the UK Government know that it is completely unacceptable; they are just not brave enough to admit it. Ministers, Tory MPs and civil servants have privately—and publicly, sometimes—acknowledged how extremely ill-advised it is to remove the power of the devolved Governments over devolved areas. This UK Government committed to introducing amendments on Report to address this, but where are they? Where is the Government’s acknowledgement that they have got this wrong?

Photo of Oliver Letwin Oliver Letwin Conservative, West Dorset

No doubt the hon. Lady will develop her argument, but will she just clarify something? It is not the case, is it, that anything is being removed from the devolved authorities? It is a question of whether things that currently reside in Brussels should be devolved rather than returned to Westminster.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

There are things that are devolved and on which we work with the EU, and we do not want those devolved areas returned centrally to the UK Government, as part of a power grab, rather than to our devolved Administrations. The Welsh Government are clearly arguing that case, and so are the Scottish Government.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

Is the issue not the basic principle that when the Scottish Parliament was set up, certain powers were reserved, and if they were not specifically reserved, they were devolved? That was not originally the case in Wales, but it was later changed. This process reverses that.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

That is absolutely the case. It is the case in Scotland and is now the case in Wales. The Welsh and Scottish Governments are clearly arguing this case, and we are now on the brink of a constitutional crisis. This is an issue of trust—trust to exercise devolved powers responsibly, trust to carry out measures that represent the people of Wales and trust to provide meaningful scrutiny of legislation. Why should we in Wales trust a UK Government who are leading us, at any cost, towards such a shambolic, hard Brexit? As it stands, after Brexit, the devolved Governments will be at the mercy of Whitehall, which will have complete control over the time, place, method and future of the powers being repatriated from Brussels. Whitehall may even decide that passing them on is too much trouble, and since the devolved Administrations are given no bargaining powers under the Bill, there will be no opportunities for either Wales or Scotland to demand their return. This is called rolling back the powers of devolution, and we in Wales will not stand for it.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

Is the hon. Lady not aware that there are ongoing discussions between the UK Government and the devolved Administrations about this very subject, that there are positive signs that an agreement will be reached—if it has not already been reached—and that therefore she is scaremongering in respect of these powers?

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

I am aware that discussions are taking place, but I am also aware that the UK Government promised to bring forward an amendment at this stage but have not done so. So where is that trust?

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Brexit), Shadow PC Spokesperson (Cabinet Office), Shadow PC Spokesperson (International Trade)

Will the hon. Lady agree that a symbol of how seriously this is being taken by the Welsh Government and Welsh parties and in Scotland is the fact that consideration is now being given to continuity Bills to ensure that those powers are retained? In fact, my colleague Steff Lewis in the Assembly will be presenting just such a Bill tomorrow morning.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

Yes, that is exactly right, and something I am coming on to. Just today, the Welsh First Minister has said he will take steps to protect Welsh powers after Brexit if UK Ministers do not change the Bill, stating that the Prime Minister’s plan to accumulate all the powers from Brussels in London is a “fundamental assault on devolution”.

Photo of Chris Ruane Chris Ruane Shadow Minister (Wales)

Members from all sides have mentioned the issue of trust. Does my hon. Friend think that the Government’s attitude to the cancellation of the electrification of the line to Swansea and their promises on EU grants to Wales have helped trust between Cardiff and London?

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

My hon. Friend is absolutely right. How can we trust a UK Government who cannot make a decision on the tidal lagoon, who cancel electrification, who do not give us fair funding, and who do not give Wales an equal say? The Bill says just that.

The First Minister of Wales has explicitly refused consent to the Bill, and if nothing has changed by the end of January, the Welsh Government will introduce a continuity Bill to protect Welsh interests. The invitation from the Welsh Government to co-operate with the UK Government to make the Bill fit for purpose has been ignored. If the UK Government understood why devolution is one of the strengths of the UK rather than—as they seem to think—one of its weaknesses, they could have included a strategy providing for meaningful, positive scrutiny of legislation by the devolved Governments, and a smooth transition of powers from Brussels to the local, devolved Administrations who are best placed to know what is best for their own countries.

Some EU frameworks will need to be replaced by common frameworks in certain devolved areas, such as agriculture, environment and fisheries, but it is unacceptable to sideline the devolved Governments in that process. The Welsh Government have always been involved in EU negotiations, and are involved in them at the moment. I know that because, in a previous role, I have been part of those EU negotiations alongside Welsh Ministers. I know at first hand what an easy process this is, and I know that it is a process that has always worked. For example, Wales leads the way on recycling and climate change. If environmental policy is reserved to Whitehall, what is to stop the deregulation and the rolling back of our progress to abide by the messy agreements that the Government are planning with the likes of Donald Trump?

Photo of Luke Graham Luke Graham Conservative, Ochil and South Perthshire

I share the hon. Lady’s frustration that the Government have not tabled an amendment, which I think will be well documented in the debate. Does she agree, however, that there is an opportunity for us to have a stronger United Kingdom through UK frameworks? The environmental point is very clear: pollution does not respect national or regional boundaries. We need strong nations, but we need a strong United Kingdom as well.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

We did table amendments, but the Government voted against them.

I cannot possibly accept that the UK Government will decide all new policies for all the nations of the UK on issues that are devolved, when they are also acting as the English Government. English interests are not always the same as Welsh or Scottish interests. We know all too well that English interests come first. Wales voted for a devolved Government 20 years ago. I was part of the campaign, and I was proud to see the then UK Labour Government bring that about.

Photo of Eddie Hughes Eddie Hughes Conservative, Walsall North

Surely the point is that we are a United Kingdom, and as we move across the United Kingdom we see a great diversity in our country. Walsall North is very different from some of the sunny areas in the south-east. I think that we need to operate collectively as a nation in these discussions.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

If the UK Government were going to work together in that way, surely they would have tabled an amendment at this stage enabling them to do just that.

We now see a more successful and more confident Wales than we saw two decades ago, but I fear that we are about to go backwards. The Tories have made it clear that when it comes to devolution, they just do not get it. Anyone who understands the basics of devolution could tell them that the Bill, in its current form, is taking us backwards. We need a Bill setting up a procedure that devolved Governments could use in order to have a say on the common UK frameworks so that they would not have to depend on Whitehall’s good will or trust, and that must be on the face of the Bill. We need a Bill that does not propose regressive restrictions on the ability of devolved Parliaments to legislate on devolved areas; this Bill is not it, and I am disappointed that this UK Government could not get their act together between Committee and Report stage and offer better amendments to salvage it.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 5:15 pm, 16th January 2018

It is a pleasure to follow Anna McMorrin. I want to raise two points, and the first of them goes to the issue around devolution and clause 11 and the lack of Government amendments. I do not share the hon. Lady’s somewhat apocalyptic view on this issue, but I certainly acknowledge that it is not desirable, because it is clearly not the Government’s intention for the process of Brexit to result in a diminution of devolved authority either in Scotland or Wales, or for that matter, in so far as Northern Ireland is going to get a viable Administration, in Northern Ireland. My view has always been, on looking at and reading the way the Bill was drafted, that we can do better than what appears in it at present. My understanding is that that is also acknowledged by the Government, although I do slightly regret that the Bill was introduced in its current form, because it seems to me that it was, to an extent, unnecessarily provocative.

However, it is worth bearing it in mind that ultimately the devolution system—I participated in the debates that set it up—had behind it the implication that the adjustments were not just a one-way ratchet, and I want to emphasise that point: the implication was that devolution might at times require adjustments that gave powers back to Westminster, just as they conferred more powers over time to both Cardiff and Edinburgh. That was clear in the course of those debates when Parliament set the original system up, and it has been repeated on a number of occasions since.

Photo of Drew Hendry Drew Hendry Shadow SNP Spokesperson (Business, Energy and Industrial Strategy)

Does the right hon. and learned Gentleman agree with his colleague in the Scottish Conservative party Adam Tomkins MSP, the constitution spokesman, who said:

“Brexit must be delivered in a way that respects devolution…Looking at the substance of the 111 powers, many can safely be devolved without further ado;
why aviation noise, for example, would need to come under a UK-wide framework I do not know”?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Yes, 110%; I agree entirely with those sentiments, and the remark I made earlier about it not being a one-way street in the way it is supposed to operate does not in any way detract from what Adam Tomkins had to say, and for that reason I continue to look to my right hon. and hon. Friends on the Treasury Bench to sort this out, and I share the regret that what should have been done in this House is clearly going to come back for consideration in this House at ping-pong. That is not very satisfactory, and I gently make the point at this stage, as I am confident that there will be the necessary amendments in the Lords, that when the Bill comes back from the Lords there must be sufficient time for us to consider it in detail, because ping-pong often has remarkably little time for detailed consideration of measures. I hope very much that we can get an assurance that, in view of the important constitutional nature of this legislation, we should get that.

I said earlier that I had been rather disappointed by the Government response to a matter I raised in Committee and that we debated earlier this afternoon, but that having been said, we debated the extraordinarily broad nature of the powers conferred on the Executive in respect of clause 7 and I am pleased at the way the Government have responded to the representations I made and the amendments I tabled. In amendment 14, it is rather nice to see the Government echoing the very words that I drafted when this matter was in Committee. I have no doubt that, as drafted, the Government amendments produce a significant safeguard on the way in which the powers can be used. They do that in two ways: first, by introducing an ejusdem generis clause, which refers to something of the same nature. In referring to the deficiencies listed, they state that if there are any others, they must be of the same nature as those in the list. The second protection that is now being provided is that, if the Government wish to add to the list of deficiencies, they are going to have to do it by an affirmative resolution of this House.

I entirely accept that this does not go as far as what I was seeking to achieve when I tabled my original amendments, which was to tie the Government down rather more. However, the Government certainly made a perfectly reasonable case in the discussions that I had with them. I think that that might exhibit a certain amount of neurosis on their part—neurosis is very common, as I know from my time in government—that they might have missed something that they ought to have put into the list. The fact that they are willing to come to the House and get an affirmative order to do this provides me with considerable reassurance that this power will now be used in the manner in which it was intended.

Having said all those good things, it is worth pointing out that this and many of the other power grabs in the Bill are quite startling in their scope. It is, however, to the Government’s credit that they have been willing to listen on this. Their amendments amount to a considerable improvement, particularly when associated with the other safeguards that we have been offered in respect of triage and scrutiny. I should therefore like to express my gratitude to the Secretary of State and to the Bill team, who have suffered my presence on probably more occasions than they might have wished in discussing how this might be taken forward. This is exactly what I came into this House to do, and it is always rather nice to be able to achieve something—and, furthermore, to achieve it without having to divide the House, as that is always the weapon of last resort for the Government Back Bencher.

With that, I come back to the point at which I started. The test of this legislation will be whether, after enactment, it is seen to be working fairly when it comes into operation. I have no idea when it will come into operation. I suspect that that is still a very long time off, but that is a product of the folly of the course of action on which we are embarked. All that we can do is to try to moderate it as much as possible.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I should like to speak to amendment 5, a cross-party amendment tabled in my name and those of other hon. Members. I should also like to indicate my strong support for the Opposition Front-Bench amendment 3. In principle, I also support many of the other amendments in this group, although not, I am sorry to say, the Government amendments, which do not go far enough towards addressing the concerns that have legitimately been raised by the devolved Administrations in particular. It is always a pleasure to follow Mr Grieve, who has made some excellent points, as has my colleague and friend, my hon. Friend Anna McMorrin, who shares many of my deep concerns about this part of the legislation, which have not been addressed.

I hesitate to raise this point, but it is odd that we are discussing devolution and Brexit in this, the most important piece of legislation to face the United Kingdom and the devolved nations since the second world war, without the Secretaries of State for Scotland, Wales and Northern Ireland being present in the Chamber with us. I cannot see any of their junior Ministers here either. Perhaps they all have other important business to undertake. That seems rather remiss, given that we are considering such serious matters. I raised a point of order with you about this the other day, Mr Speaker, as did other Members. Much of the concern about this part of the Bill relates to promises and assurances that were given by the Secretary of State for Scotland, yet he is not here to account for himself. I have a great deal of respect for him, but these are serious issues that have been raised in good faith, and Ministers should be here to hear our concerns, and those of the devolved Administrations, if we are truly supposed to be bringing the United Kingdom closer together—as the Prime Minister claims to want to do—rather than pushing it apart.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

I count 10 Ministers on the Treasury Bench, so it is a little churlish to say that the Government are somehow under-represented when I can see only four members of the Opposition Front-Bench team. I think that says it all. This Government are listening hard to what the hon. Gentleman is saying even though he is being rather tedious.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I do not normally respond negatively to the hon. Gentleman, but he fundamentally misunderstands my point. I did not say that Ministers were not here and listening; they clearly are. I can see the Minister for Africa, a Health Minister, the Skills Minister, Brexit Ministers and the Leader of the House, but where are the representatives of the Departments that are supposed to be doing the frontline discussions with the devolved Administrations? They are not here. [Interruption.] Chloe Smith, a former Northern Ireland Minister, is also here, but I think she moved in the reshuffle. [Interruption.] She might be at the Cabinet Office—that is wonderful to hear—but where are the relevant Ministers? They should be listening, because what is the point of their being in their roles if they are not taking part in debates such as this?

Moving on, we had a lengthy and technical debate in Committee, and I do not want to repeat all the detailed arguments; I intend to focus on the principles that are stake. Fundamentally, this is about respect. Mr Jenkin spoke about trust, and it is also about trust. It is about respect for Wales, Scotland and Northern Ireland and for democracy in a wider sense, because the powers that the legislatures of Wales, Scotland and Northern Ireland now have are the result of several referendums, several elections, detailed debates and consideration, and a great number of Acts. This is about respect for the devolution settlement and, ultimately, for the Union. I made an election promise to stand up for Wales alongside many of my Welsh Labour colleagues, and I wanted to raise our concerns today because they are so serious.

I have not re-tabled all the amendments that were tabled in Committee, because we have limited ability to consider them at this stage, but I live in hope that the new Cabinet Office Minister and the Government will work to address many of the concerns. However, I have no doubt that Members of the other place, where we have ex-First Ministers, distinguished former Ministers and Members who have served in devolved Administrations, will look carefully at the detailed concerns that were raised in Committee, at statements from the Scottish and Welsh Governments about the deficiencies in the Bill as it stands, and at the Government’s failure to address the issues, even in the limited set of amendments that they have tabled for consideration on Report.

I share the serious concerns about clause 11 and the lack of UK-wide frameworks and mechanisms to address many things, which reflects the wider complexity in this endeavour that we are rolling ahead with. We heard about Anguilla earlier on, and who would have thought that that would be a concern? There is so much detail in the complexity of the integration of our relationship with the European Union that the Government simply have not given enough it attention. Whether someone voted leave or remain, trying to address some of the issues is only in the country’s interests.

The White Paper of March 2017 claimed that there would be a significant increase in the decision-making power of the devolved Administrations and that former EU frameworks would be subject to decisions by democratically elected representatives of the United Kingdom. That clearly is not the case with this Bill as it stands. We have heard that there are 111 powers, but we are supposed to just take it on trust that all of them will transfer when the UK Government have repeatedly attempted to undermine the devolved Administrations. I raised that during the passage of the Trade Union Act 2016 and when discussing the Agricultural Workers Board. There is a litany of examples of when things end up in the Supreme Court or in complex disagreements, instead of being addressed in the first place.

The Secretary of State for Scotland suggested that amendments would be made at this stage, but we have not seen them. They have obviously become caught up in some shenanigans that were partly dealt with in the reshuffle. The situation is greatly disappointing, not least because the amendments that were drafted by the Welsh and Scottish Governments that were tabled as cross-party amendments by me and many other hon. Members were proposed in good faith. They were not about stopping Brexit or trying to wreck the Bill; they were serious, well meant and well intentioned and tried to address the serious concerns about the provisions in the Bill. Indeed, we know those concerns are shared by many Conservative Members. It is a shame that Paul Masterton has left his place, but he said in Committee that

“clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little;
it needs to be amended and replaced with a new version.”—[Official Report, 4 December 2017;
Vol. 632, c. 731.]

Photo of Chris Elmore Chris Elmore Opposition Whip (Commons)

The Secretary of State for Scotland said that these things would come back on Report. That has not happened, and now the Government are saying that it will go to the Lords. Of course, technically, the Government cannot guarantee any votes in the Lords because they do not have a majority, so this is another area where there is an element of failed trust; they simply do not have the numbers, even if they stack the Lords with a pile of the Prime Minister’s friends.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth 5:30 pm, 16th January 2018

Indeed, and it is a great concern that we have not had a proper chance to discuss the issue in this place. Given some of the constraining efforts by Government Whips and others at previous stages of this Bill, we will no doubt have constraints at ping-pong, when we consider the amendments made by the Lords. I want these issues to be substantially addressed.

Photo of Ian Murray Ian Murray Labour, Edinburgh South

Would it not be an act of good faith for the Government to accept amendment 3 today, and then to amend that amendment in the Lords?

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

Amendment 3 is sensible, well meant and well thought through, and it enjoys substantial support. If the Government just accepted the amendment and moved forward, it would show good faith and we could try to resolve these issues.

As my hon. Friend Anna McMorrin said, this Bill will not proceed with the consent of the Scottish Government, the Scottish Parliament, the Welsh Government or the Welsh Assembly without substantial and urgent changes over the next few weeks, or indeed today before the Bill reaches the other place. That is well understood by people across the EU who are watching this process—indeed, I raised it on the visit to Brussels yesterday.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

The hon. Gentleman is making a good point about the legislative consent motion and the requirements that need to be in place for it to happen. The Labour amendment would not bring that about. There needs to be an agreement between the UK Government and the devolved Administrations. Without that agreement, it is impossible to replace clause 11 satisfactorily to secure that LCM.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

The bottom line is that these concerns have been raised for months. They were raised by the Welsh and Scottish Governments right at the start, when the Bill was published. The UK Government have had plenty of time to resolve things, which is why there is such deep distrust and suspicion about their intent. Until they come up with something that actually addresses the concerns, we will continue to raise the issue.

Several hon. Members:

rose—

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I will happily take more interventions in a moment, but I want to make a little more progress.

My hon. Friend the Member for Cardiff North also briefly referred to this, but it is important that we hear exactly what the First Minister of Wales, Carwyn Jones, said in his statement today:

“The Bill as it currently stands represents a fundamental assault on devolution. It would replace current constraints on the National Assembly’s legislative competence, which will fall away…with a new set of constraints in devolved competences that would be controlled by the UK Government. We have consistently said there is no prospect of the Welsh Government recommending consent to the EU Withdrawal Bill as it is currently drafted… It is a matter of considerable regret that the Government has not, despite the undertaking of the Secretary of State for Scotland, introduced any amendment to Clause 11 which, as it stands, is wholly unacceptable to us.”

He went on to say that he is deeply concerned about the Government’s failure to accept some of the reasonable amendments tabled on a cross-party basis in Committee, and he made it clear that there will be consequences.

Hywel Williams spoke about a continuity Bill, and the First Minister made it clear today that, over the past eight months, the Welsh Government have been developing a continuity Bill that can be deployed if it becomes clear that it will not be possible to amend the EU (Withdrawal) Bill to ensure it properly reflects the devolution settlement. If amendments are not made, the Welsh Government will submit that continuity Bill to the Presiding Officer of the Welsh Assembly.

The First Minister could not be clearer, and I share his deep frustration, disappointment and concern that, despite all the warm words at different stages of the Bill—perhaps we will see a rapid turnaround from the new Minister for the Cabinet Office—these issues have not been addressed. We could have been debating the finer points today and moving on from this issue if we had ensured that we kept the constitutional framework in place.

Photo of Luke Graham Luke Graham Conservative, Ochil and South Perthshire

Does the hon. Gentleman recognise that negotiations are two-sided? He talks about the agreement of the Welsh Assembly and the Scottish Parliament, so can he guarantee that if this House were to adopt the Labour amendment, the LCM would be passed in both of those?

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

I think the Government should accept the series of amendments we have tabled. I am communicating the concerns of the Welsh Government and the Welsh people—indeed, of many who want to respect and maintain the devolution settlement as it is. The hon. Gentleman is asking this question now, but these amendments were put down months ago and these issues have been raised.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Constitution), Shadow SNP Leader of the House of Commons, Chair, Scottish Affairs Committee

This is exclusively the responsibility of the UK Government. They introduced the repeal Bill, designed clause 11 and acknowledged that there are issues for both the Welsh Assembly and the Scottish Parliament, so it is up to them to fix it. Does the hon. Gentleman agree that this attempt to share blame with Scotland and Wales, as if somehow we are semi-responsible for this impasse, is totally disingenuous?

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

The hon. Gentleman makes an important point.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

Does my hon. Friend agree that this Front-Bench amendment was written alongside and in co-operation with the Welsh Government, which means they will accept what this amendment says? [Hon. Members: “The LCM?”] Yes.

Photo of Stephen Doughty Stephen Doughty Labour/Co-operative, Cardiff South and Penarth

The series of issues we have raised concerns about for months has been clearly set out. These issues have been raised since the Bill was drafted. We are in the absurd situation where the Secretary of State for Scotland admits there are deficiencies in the Bill and many Conservative Members agree with that. I have no doubt that the Minister for the Cabinet Office agrees with it, although I doubt he will say so today. We all recognise there are deficiencies with it, so the question is: why have they not been resolved before we reached this stage? We were hearing a lot from the Scottish Conservative Members, whose position seemed to be somewhat different from that of their counterparts in the Scottish Parliament. The Welsh Conservatives claimed today that they are disappointed; the whole of Wales will be disappointed by their failure to stand up for Wales and their own legislature, in which they sit.

As I said, I do not want to go back into all the technical detail, so I finally wish to come to the nub of this issue: why does all this matter? Why do these issues matter? Why do these technical debates about the constitutional settlement matter? They matter because they have consequences for our Union, for the devolution settlement and for the economic operation of the markets within this United Kingdom. We are already going to be struggling to deal with the serious consequences we will face if we carry on along the Government’s hard Brexit path of, for example, leaving the customs union and the single market, with which I do not agree. Do we really want to add to that a series of complexities, challenges and problems within our own internal markets, logistics and functioning?

There are serious consequences for relationships that we know are already under strain and the subject of lively political debate in the UK. There are also economic consequences of Brexit as a whole for the devolved nations. Just this week, University of Birmingham research showed that the nations and regions of the UK are very exposed economically, with 11.7% of Welsh GDP being exposed. As I said, there are serious consequences to leaving the single market and customs union. We heard yesterday from one of Wales’s largest employers, Airbus—I draw attention to my declaration of interests—which employs a number of people in the defence and space industry next door to my constituency and many people across Wales. Its chief executive, Tom Enders, said that the “wreckage” of Trump will be easier to repair than that of Brexit, given the increased costs and the challenges for competitiveness.

The Welsh people, the Welsh Government and the Welsh Assembly need to have a proper say in where we go on this process, given the implications. As the consequences become clearer, the Welsh people, and indeed the British people, have the right to change their minds on this entire process.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

Thank you for allowing me to say a few words in this setting, Mr Speaker. I wish to make it clear that, despite whatever else I may say in this speech, I support this Bill wholeheartedly and I wish it to be a success. Uppermost in my mind when considering the Bill are the ramifications of there not being a Bill. I think about the choice the British people made to leave the EU and I respect it. We made a commitment to act on that instruction and act on it we shall—we will honour that vote. Those who choose to disregard the vote of the British people must answer to the British people. My constituency voted to remain in the EU, but I know that my constituents are democrats who expect me, as their elected Member of Parliament, to ensure that their best interests are served in the light of the outcome and that the result is upheld. Many businesses and individuals in my Stirling constituency are ready to make the best of Brexit.

Photo of Ian Murray Ian Murray Labour, Edinburgh South

The hon. Gentleman is running through the start of the speech he made in Committee, during which I asked him four times to outline how he feels clause 11 is deficient and how he would like that sorted. Would he like to take this opportunity to tell us?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I thank the hon. Gentleman for remembering my speeches, which makes him very favourable in my sight. I shall come to clause 11, but first I wish to make it clear that the people and businesses of Stirling—the individuals who live in my constituency—want us to make the best of Brexit. All we hear from other parties, as we heard from the First Minister of Scotland yesterday, is an unmitigated diet of doom and gloom. The fact is that, as was disclosed in an esteemed social attitudes survey that was released last week, there are really no differences between the electorates in Scotland and England when it comes to what they want the Government to get on with doing. They want the best possible Brexit, and a smooth Brexit that will work for all the people of this country.

The Bill is a necessary enabling measure. No one in this House wants to put our country and British businesses through a cliff-edge Brexit. The idea that there are Members who do is often repeated, but it is just not true. We want a smooth Brexit and a working statute book at the end of it. I repeat that, and I do not apologise for repeating it.

Photo of Martin Whitfield Martin Whitfield Labour, East Lothian

Does the hon. Gentleman agree that the electorate do not want a deficient Bill to lead them into Brexit?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

Let me come to that—I promise that almost my next sentence will be on that. I want to make sure that the Bill and Parliament deliver what my constituents expect.

I now turn to clause 11 and the amendments to it, particularly amendment 3. Let me be absolutely clear about the clause: we must have an agreement between the UK and Scottish Governments to allow for the passage of a legislative consent motion. I am not convinced that that is a legal necessity, but it is a convention that the Government are honouring and they should be commended for that. I am therefore intensely disappointed, dissatisfied and frustrated that a deal has not been struck between Scotland’s two Governments.

In the past few days, there has been a lot of talk in the media about the claim that there is an agreement in principle between the UK and Scottish Governments. The Scottish Government’s Brexit Minister, Mike Russell, claimed on television on Sunday that such an agreement existed. Will the Minister tell us the status of the negotiations between Scotland’s two Governments? Is there an agreement in principle? Is there an agreement on the frameworks that we all agree are essential for the operation of the UK marketplace, to allow the UK to honour its international obligations and to strike trade deals?

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

Does the hon. Gentleman accept that the need to make amendments to improve clause 11, which is almost universally accepted as deficient, is not predicated on there first being an agreement on a legislative consent motion, or the agreement with the Scottish Government to which he refers? Amendments should be taken on their merits alone.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

That is brave talk, but the facts of the matter are that Conservative Members are seeking to co-operate with the devolved Administrations so that there can be a unanimous approach to the legislative consent motion.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

Does the hon. Gentleman not see that the way to achieve UK frameworks and to respect devolution would be to have all four Governments around the table as equals? We should not have this place handing things down from on high.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I do not recognise that description of what has been going on. In fact, as lately as October, the UK Government and the devolved Administrations set out the principles by which such an agreement as I am describing would be achieved. I do believe that an agreement is necessary for us to be able to see that clause 11 is fit for purpose. It is a very important part of the passage of this Bill. We have to respect the devolved settlement, and an appropriately amended clause 11, which is subject to the negotiation and agreement of the devolved Administrations, is how to proceed.

Photo of Ian Murray Ian Murray Labour, Edinburgh South 5:45 pm, 16th January 2018

I will try for the sixth time over two debates to get the hon. Gentleman to answer this question. I ask him to please not say that he is coming on to it, when he never comes on to it. What is deficient in clause 11? What would he like to see changed in order to make it a clause that is not deficient? Does he stand by what he said in the previous debate that he expects the Government to come forward with amendments before it goes to the other place?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I am going to disappoint the hon. Gentleman—I will come on to that last point. What I believe should exist in clause 11 is the subject matter of the agreement that is reached between the UK Government and the devolved Administrations, in terms of UK frameworks in particular. We all accept that it is necessary that there are UK frameworks.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

When I was referring to having all four Governments around the table, I was talking not about negotiating clause 11, but about how to set up frameworks for fishing, food or the environment. Those things should be decided together and not just decided here.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

My hon. Friend Mr Jenkin, the Chair of the Public Administration and Constitutional Affairs Committee, is not in his place now, but he dealt with that matter in his speech. I must say that I find myself in complete agreement with his sentiment and that of the Committee’s recent report, which is that, since we arrived at the position we are at with devolved Government in the United Kingdom, there has been a lack of appropriate machinery for our Governments to work together. There is a lack of appropriate constitutionally agreed machinery for even Parliaments to talk to each other. That must be addressed. One of the positive aspects of Brexit—

Photo of Alister Jack Alister Jack Conservative, Dumfries and Galloway

I absolutely agree with my hon. Friend that amending clause 11 is the right thing to do, but the detail of amendment 3 would be mired in judicial review were it to be accepted. For that reason, it is the wrong route to go down.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I completely agree. Although I could not disagree fundamentally with the wording of the amendment, it is not adequate for its purpose in terms of the withdrawal Bill and the importance of achieving the legislative consent motions that this Government have rightfully determined are the way to proceed with what is—I agree—a major constitutional rearrangement of the affairs of this country because of our exit from the European Union.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

We all accept that having those joint frameworks is a desirable and necessary thing, but we are talking about the sequence in which that should be carried out. It is not necessary for us to wait for that to happen before amending clause 11 and making it fit for purpose now. Why do we not crack on and do it today? What is stopping us?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

What is stopping us is the fact that there is no point creating an amendment which then itself has to be amended. No one is more disappointed and frustrated than I am that we do not have these amendments. I sat and listened to the Secretary of State for Scotland make the same commitment. I will come on to that as it is a serious matter for me.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Constitution), Shadow SNP Leader of the House of Commons, Chair, Scottish Affairs Committee

It is important that the hon. Gentleman understands the sequence and how this works. The repeal Bill is something that this Government have done to Scotland. What we have identified in that repeal Bill is a devolution threat in a clause that has to be corrected. If that is not corrected, there will be no legislative consent motion. It is incumbent on the Government who introduced this Bill to sort it and bring it forward. Then we will see whether we can give a legislative consent motion. That is how it works.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

There is the soul of a nationalist. The hon. Gentleman manages to take any issue and to make it into a grotesque grievance, which does not even exist. The fact is that the Government are going to extraordinary lengths to achieve the necessary level of consensus and agreement by which clause 11 can be amended so that it is fit for purpose. I support that, but it does not take one iota away from the fact that I am intensely disappointed. I ask the Ministers again to tell us about the status of the negotiations and where we are on the agreement. If there is an agreement, no one will say any louder, “Where is the amendment that we were promised from the Government?” [Interruption.] I am saying it now; I just said it. The Government gave undertakings that the Bill would be amended at the stage before it left this place to go to the House of Lords.

Photo of Ian Murray Ian Murray Labour, Edinburgh South

I am not going to ask the hon. Gentleman for the seventh time, but will he tell the House what mechanism he and his Scottish Conservative MP colleagues would have in this House if the Government do not amend the Bill in the House of Lords?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

The hon. and learned Lady, with her normal reserve, says that I do not know. The fact is that there are established processes by which the amendments that will now have to be made to the Bill in the House of Lords will come back here. Those processes were addressed by the Chair of the Public Administration and Constitutional Affairs Committee.

I do not want my next point to be lost, especially on my hon. Friends on the Government Front Bench—please do not underestimate the depth of disappointment and frustration among Scottish Conservative colleagues in the House. It does not seem appropriate for the Government to blame outside influences for the lack of an amendment. [Interruption.] SNP Members say, “Yes.” But it took until October to get an agreement to the principles by which we would proceed towards the agreement that I, and many of us here, regard as essential. Why did it take so long? Well, the fact is that the nationalist Government in Edinburgh are approaching the matter, as usual, with a wrecking mentality. They want to create a constitutional crisis that precipitates their beloved second independence referendum. The First Minister was at it again this week, talking about another independence referendum. The people of Scotland have spoken on this matter, but the SNP will not listen and its Members claim to be the democrats in this House.

Photo of Neil Gray Neil Gray Shadow SNP Spokesperson (Social Justice)

The hon. Gentleman talks about trust, and about building towards agreement and compromise. Will he advise us as to how he expects that trust, agreement and compromise to come about? My understanding is that the UK Government have not shared any draft amendments to clause 11 with the Scottish Government.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I respect the hon. Gentleman’s point of view and question on this matter. Frankly, I believe that we will proceed on the basis of the negotiations, on which I have asked Ministers to update us. Even Ministers in the hon. Gentleman’s own Government in Edinburgh talk about these matters in the most positive terms; it is not necessary to dress the issues up as a crisis and make them into some drama. We need to proceed to a point at which we can get to an agreement, which will then be the basis for an amended clause 11.

Photo of Gerard Killen Gerard Killen Labour/Co-operative, Rutherglen and Hamilton West

I am just looking for some clarity. The hon. Gentleman mentions how difficult it has been to get agreement with the Scottish Government. If the Government continue to fail to get that agreement, is it the case that no amendments to clause 11 will be tabled in the other place?

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

The hon. Gentleman talks about there not being any prospects of an agreement. There is every prospect of an agreement, and I am quoting the SNP Brexit Minister. There is every possibility and likelihood of an agreement. My view is that it should have been achieved before now, and that we should have had an amendment to the Bill.

Several hon. Members:

rose—

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I will give way just one more time because I am sure that Mr Speaker’s patience with me is going to wear thin. In fact, I will take one intervention from the Opposition and one from my hon. Friend the Member for Harwich and North Essex.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

The Welsh Government and First Minister deemed it necessary to make a statement today about the lack of joined-up working with the UK Government, which is threatening a constitutional crisis; that is coming from a Labour Government in Wales. The very point is that we are on the brink of a constitutional crisis. We need an amendment. We need the Government to support Labour’s amendment 3.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

The hon. Lady is describing the attitude of the Welsh Government, which in many respects has been more hawk than dove on these matters. I have no doubt that that is for the Labour party’s political purposes in Wales, as such things are for the SNP in Scotland.

Photo of Bernard Jenkin Bernard Jenkin Chair, Public Administration and Constitutional Affairs Committee

It would be helpful if the Government gave an assurance today that in the event that there is no agreement with the Scottish or Welsh Governments, they will still amend clause 11—unilaterally, if necessary—to ensure that its effect is ameliorated as reasonably as possible. If the Scottish and Welsh Governments refuse to agree to that, it will be a problem for them and not for this Parliament.

Photo of Stephen Kerr Stephen Kerr Conservative, Stirling

I completely agree with my hon. Friend. I believe that we must not be foolishly optimistic but realistic. When SNP Ministers talk as positively as they have, which is a different sound from the one that we hear from SNP Members here, then we have every reason to believe that wise heads—adult heads—will have sway and there will be an agreement.

I repeat—I do not want this not to be heard—that the Government made a clear commitment to the House on the amendments to clause 11, and I took those commitments at face value. As a Conservative Member, I never want to get to the point where I cannot take commitments given to me by right hon. and hon. Members at face value, because I hope, frankly, that they can continue to trust commitments that I might make to them. I really do want to understand why we have arrived at this point. I am afraid that there is a point of principle and accountability involved in answering these questions. What happened in the Departments in the past few weeks and months? Did they somehow lose focus? Were we not clear enough in what our expectations were?

I share with the House a concern that has resurfaced time and again since I was elected as Member for Stirling: since the devolution settlement UK Governments of all flavours have tended to devolve and forget, and that is a very dangerous practice. Again, I appeal to the Government to consider the appropriate machinery that creates the means by which our Governments work together, because that is what my constituents want. They are tired of the voices of conflict that they hear regularly in Scotland. They want us to be conciliatory. They want us to work by consensus and through collaboration.

When the devolution settlements first went through, when Labour was in power, there was a fashionable term that is still appropriate—“sofa government”. With a Labour Prime Minister in London and Labour First Ministers in Edinburgh and Cardiff, it was all very cosy, and so there was no need for any of the machinery that I am describing. In fact, one of the Scottish Labour leaders described their party in those days as the “branch office” of the party in London. By contrast, we as Unionists should believe in and work to the principles of partnership, and I believe that that is possible.

The reason behind amendments to clause 11 was to strengthen devolution and by doing so strengthen the Union. The nationalists will always create their narrative of grievance and scream “power grab” at every imagined opportunity. A strong amendment would have pulled the rug from under their squalid argument. It would have shown them up as the creators of grievance rather than giving grievance a voice, which we are hearing today.

Let me touch briefly on the rather weak amendments being offered up by the Opposition parties. The SNP amendment has no chance of passing and does nothing to address many of the concerns that Conservative Members have. The Labour amendment is well-intentioned but poorly drafted, and will only make room for legal wrangling and uncertainty. Not only that, but it shows no understanding that devolution in the UK is asymmetrical. The Scottish, Welsh and Northern Irish Parliaments are very different creatures, and there will undoubtedly be a need for frameworks that cover different parts of the United Kingdom and not just whole-United Kingdom frameworks.

For the good of Scotland, any powers that are returning to the UK from Brussels that are not reserved must, by definition, be devolved. I accept that UK frameworks are required. They can pragmatically solve problems, and they should do so through an equal partnership where all sides—Cardiff, Edinburgh, London and Stormont —can come together to solve problems and to share ideas. This is pragmatic partnership building. It is Unionism at its best, and even the enlightened nationalists seem to sign up for this. Everyone seems to agrees with it, so again I am left wondering why we would allow this Bill to leave this House and go to the other place without a suitable amendment.

I make no bones about it: it sticks in my craw to think that unelected Lords will make the vital amendments to this vital constitutional Bill. It is not really good enough, and as a Member of the House of Commons I hang my head to think that we have somehow dropped the ball. The Bill will leave this House unamended and in an unsatisfactory state, and we are now dependent on unelected Lords to do our job for us.

The Government had control of the timetable—the deadlines were created by them—but they have let this Chamber down by not delivering on what they promised. I really want to hear from a Minister at the Dispatch Box what the Government now plan to do in detail about amending clause 11. I want to hear much more about the shape of the amendment they will bring forward. It is time to get into the detail: we have had enough of the generalities and of the reassuring news, and we now want the detail.

Let me conclude—[Interruption.] SNPs Members will all be very disappointed, but I think that is only fair. The Government have a great track record of listening to the concerns of their Back Benchers. Despite what I am saying, I want that to be a matter of record as well. That is what makes dealing with the situation we find ourselves in so much more difficult. This is an aberration, not what we are used to. The Government listened to our concerns about the Budget and acted on them. I know from my own experience the intensity with which Ministers have listened to suggestions from Back Benchers like me on matters such as the roll-out of universal credit. I cannot speak too highly of the former Minister for Digital, my right hon. Friend Matt Hancock, for responding to the challenges and difficulties we have experienced in Scotland with the roll-out of superfast broadband, especially in rural areas.

However, this critical clause is of huge importance to me and many of us in the Scottish Conservative party. For the promises made to us not to have been kept is a poor show. I want it clearly understood that my constituents voted to remain in the EU, but they accept the UK vote and want an efficient withdrawal to be executed by the Government, and the Bill will do that. However, we must also deliver on the powers for the Scottish Parliament in Edinburgh, and the Government have failed on this element of the Bill. I therefore expect some interesting and convincing explanations and some convincing commitments from the Minister tonight. Although the Government have run out of time to make their own amendments, they can take the time tonight to make amends.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Exiting the European Union) 6:00 pm, 16th January 2018

It is a pleasure to follow Stephen Kerr, and I can sense the torture he is putting himself through. The shadow Secretary of State for Scotland, my hon. Friend Lesley Laird, who is sitting on the Bench beside me, described his trying to come up with a reason for not voting with the Opposition on amendment 3 as “dancing around handbags”. My only advice to him is that he can be as tortured as he likes and in as much turmoil as he clearly feels, but unless he votes accordingly, the Government will never take him seriously and his pleas will go unanswered, as they have so far. He has a good hour to reflect on that and to consider what he wants to do this evening, and I hope that he decides in the end to vote with us on amendment 3.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

Does my hon. Friend not agree that the game-changing arithmetic is with the Scottish Conservative bloc of 13 MPs, and if they come together, show some gumption and stand up for the national interest, they can actually turn this around and improve clause 11 today? There is nothing stopping them: they could overturn the DUP bloc and change this if they brought forward their own amendments.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Exiting the European Union)

That is exactly what I am saying to those Conservative Members. I do not want to make it more difficult by goading them too much because I understand how they must be feeling—I will leave that to my SNP colleagues—but this is an important moment this evening. If we agreed amendment 3, we would be sending a very clear signal to the Government and requiring them to come back with something in the Lords—with the support, without a doubt, of the votes of Labour peers—to amend the Bill as we ought to be amending it this evening.

I want to keep this very simple. I will speak to amendment 3 in my name and those of my Opposition colleagues. It was disappointing to have to table this amendment. It should not be necessary, because the Government, with the support of the devolved authorities, should have tabled their own amendment, but they have not done so, so here we are.

From the outset, it has been clear that one of the greatest problems with this deeply flawed Bill is that it threatens the devolution settlements that underpin our Union. The Scottish and Welsh First Ministers have described it as a naked power grab, and there is a clear danger that a major piece of constitutional legislation that amends devolution settlements will not receive the consent of the devolved Administrations, which would be a real failure for the Government.

What is the problem? As we argued in Committee, the presumption at the heart of clause 11 is that, as powers return from Brussels, they will be held in Westminster rather than being passed to the devolved Administrations. The Government say that will be temporary, but they have put no time limits on the hoarding of those powers, and there is no collaborative mechanism for the creation of UK-wide frameworks and the devolution of power. Instead, that is assumed to be in the gift of Ministers.

The problem has been recognised by Conservative Members. Paul Masterton said in Committee:

“On Second Reading, I said that I would not allow legislation to pass that undermined the Union or the devolution settlement, and that remains my position today.”

He also said that

“clause 11, as drafted, is not fit for purpose and must be changed.”—[Official Report, 4 December 2017;
Vol. 632, c. 729-731.]

He was not alone. Andrew Bowie said that

“changes will have to be made to clause 11 as it stands”.—[Official Report, 4 December 2017;
Vol. 632, c. 796.]

Stephen Kerr said that the Bill must be amended and added:

“As the intergovernmental discussions progress and the Bill returns to this House, as it will, before it goes to the other place, it is very much my hope that there will be some greater detail in clause 11 to help all hon. Members to have a degree of confidence in its intent.”—[Official Report, 4 December 2017;
Vol. 632, c. 803.]

Today, he said that he is deeply disappointed that that is not the case.

Conservatives in Scotland must have been pleased when it appeared that the Government had listened and promised to amend clause 11 on Report. The Secretary of State for Scotland told the House that the hon. Member for East Renfrewshire had clearly set out why clause 11 needed to be amended, and he went on to say that the Government would table amendments to clause 11 on Report. The promised amendments have not been forthcoming, and the Government now say that they will be tabled in the Lords. But as the shadow Secretary of State for Scotland has said, the lack of transparency is becoming a habit.

This is not good enough. Conservative Scottish and Welsh Members have been reasonable and given the Government a chance, but they have let them down. Now it is time to force the Government’s hand by voting for our amendment, because devolution settlements are more important than any party interest.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

The EU referendum result was clear, and it was a decision by the House to put that question to the people. They gave their answer. Whichever way we voted in the referendum ourselves, we have been given instructions that must be carried out. In Scotland, as much as others might wish to portray the picture differently, more than 1 million Scots voted to leave the European Union, 600,000 of whom came from the SNP yes side.

It is inherently the case that, as we leave the European Union, those powers that it exercises on our behalf will come back to the UK and to Scotland. That has always been the golden opportunity to exercise more powers in Scotland over areas such as fishing and agriculture. That is why Members on the other side of the House should welcome that. Rather than fighting to keep those powers in Brussels, we should be fighting to take them here.

We have one opportunity to get this right. We do not get a dress rehearsal for leaving the European Union. There is one time to negotiate and get it right, and it is in nobody’s interest to see a rushed process or to get anything wrong that could damage our constitution. As the House knows, Conservative Members believe inherently in the power of our single market here in the UK.

Photo of Deidre Brock Deidre Brock Shadow SNP Spokesperson (Devolved Government Relations), Shadow SNP Spokesperson (Fair Work and Employment), Shadow SNP Spokesperson (Northern Ireland)

The hon. Gentleman’s colleague, Stephen Kerr, quoted the Scottish social attitudes survey. Some 62% of Scots in that survey think that all decisions about fishing should be taken by the Scottish Government, and 59% think that all farming decisions should be made by the Scottish Government as well. Does the hon. Gentleman agree?

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

I thank the hon. Lady for her intervention. I know that Members can be selective, but that survey also showed that the majority of Scots want immigration to stay at the UK-wide level. It is really important that we still have UK-wide frameworks and things that are kept at the UK-wide level.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

No, thank you.

The survey also shows that Scots want to leave the single market. The Scottish Government published a paper yesterday saying Scotland has to remain in the single market, but Scots want to leave the single market—the survey is very clear. So Members can be very selective in the things that we quote.

As I said, it is important that we get this right. Even Joanna Cherry—she is not in her place at the moment—said in her introductory remarks that, although she had voted to remain, it is really important that we get the Bill right. Having the Bill is important.

Conservative Members not only want but require there to be proper changes to the EU withdrawal Bill, because we want to see the Scottish Parliament grant its legislative consent, and the Lords require that as well before they make changes. It is in the interests of all Administrations, whether in Scotland, Northern Ireland or Wales, that we find a way to reach agreement. Therefore, I urge in the strongest of terms that the Scottish and UK Governments work and engage positively to ensure that negotiations advance well and that that important agreement can be reached. I welcome the fact that the UK Government have been absolutely clear to date that they want a constructive and consensual approach and that nothing will be imposed on any of the devolved Administrations.

Photo of Ian Murray Ian Murray Labour, Edinburgh South

The hon. Gentleman is making the same argument as Stephen Kerr with regard to the negotiations being complete and the negotiations and the conclusion to them then influencing amendments in the other place. If the negotiations do not conclude by the time this Bill passes through the other place, what mechanisms do he or any of his Scottish Conservative MP colleagues have in this place to amend the Bill?

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

I thank the hon. Gentleman for his intervention. I am glad that he has recognised that my colleagues and I are saying the same thing, because it is the right thing and the sensible thing, and that is why we have been consistent in our approach. I am also glad that he acknowledged the power and influence that we hold on the Conservative Benches, compared with the Labour Benches, because there are more Scottish Conservative MPs than Scottish Labour MPs.

However, we recognise that reaching agreement is in the interests of both Governments; both want to see a conclusion. Even Mike Russell himself—I have sat in the Scottish Parliament Chamber listening to his diatribes and to him railing against Brexit—wants to reach agreement with the UK Government; in fact, he said that in the Scottish Affairs Committee. Agreement is in the interests of all, and I am positive that changes will be made in the Lords and that we will get agreement, because it is not in any Government’s interests not to secure it.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

Can I make a little more progress? I will take more interventions.

Looking at the amendment before us, it is clear that there is no safeguard in terms of UK-wide frameworks, which many of us agree are important when it comes to areas such as agriculture or animal and plant welfare standards. Further, and importantly, it does not secure any Joint Ministerial Committee consent, and it does not guarantee the legislative consent that is essential in the Scottish Parliament.

We may all have areas of disagreement, but it is important that we do not pre-empt things by voting for this amendment tonight and that we work constructively to ensure we can get the JMC and our national Parliaments and Assemblies on board. I do not take the characterisation made by Mr Sweeney that we can somehow speed ahead with the process and that, fingers crossed, things will be amended and then come back. We need to be working more collaboratively and constructively with the Scottish Government.

Photo of Neil Gray Neil Gray Shadow SNP Spokesperson (Social Justice)

On that point, does the hon. Gentleman share my concern that the UK Government do not appear to have shared any draft amendment to clause 11 with the Scottish Government? Has he seen any draft amendment? Has he been involved in any of those discussions?

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South 6:15 pm, 16th January 2018

I thank the hon. Gentleman for his intervention. Obviously, Government Back Benchers have not been directly involved in negotiations between the Governments, but boy, have we been meeting with our ministerial colleagues and making our position and our asks very clear, and I am sure Ministers will reiterate what those asks have been. This is important, because it is in both Governments’ interests that we reach a conclusion. I would ask the Minister, have SNP Ministers shared with you some of the negotiating aims that they are looking for? This is a two-way process.

Given the amount of work that colleagues on the Government side of the House have put into this, there is genuine disappointment and frustration that those amendments have not been tabled on Report; we are disappointed that they will have to come through from the Lords. However, as I said, we recognise that this process is very complex, and that the implications if we do not get it right are very far-reaching. So, we need to ensure that when it comes to UK-wide frameworks, we get agreement on both sides. Some powers will naturally go back to the Scottish Parliament, but some issues are best approached at a UK-wide level, and there is still no agreement between both Governments on that.

If we do agree to the amendment, we must look at what happens where there is disagreement between both Governments in future in the exercise of some of these powers. The way in which those disputes are resolved is inherently complex; it is not simple. I do not think any of those points is addressed in the amendment before us.

I shall touch on a point that was raised by Anna McMorrin. I know she is standing up for her area in the way she thinks best, but a lot of the rhetoric sounds very familiar. It is very like what many of my hon. Friends have been dealing with for a long time in Scotland, with the rise of nationalism and with the independence referendum. It is very easy to batter the UK Government in that way, but I believe it is very dangerous and divisive to do so. Maybe the hon. Lady can learn lessons from her Scottish Labour colleagues. It was as a result of that ambivalence towards the Union that Scottish Labour found itself a third party in the Scottish Parliament, and that it has again found itself a third party in Scotland since the general election. That is why there are more of us sitting on the Conservative Benches—because we believe that standing up for the Union is a good thing, not just battering all the time.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

The Labour Government in Wales are not a nationalist Government, and if the UK Government were to work co-operatively with both the Welsh Government and the Scottish Government we would not be in this situation. We need that amendment, and the behaviour of this Government means that we are heading for a constitutional crisis. I do not want that constitutional crisis, and neither the First Minister for Wales nor, I think, the First Minister for Scotland wants it.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

I do not accept the hon. Lady’s characterisation of the UK Government’s behaviour. I have seen people in the UK Government acting in good faith, and in fairness, I have seen that Scottish Government Ministers usually privately act in good faith. The public dance within the media and in public is something different, and I know that the SNP have to get from where they are to where they can accept UK-wide frameworks, but I know they are on that journey. I believe that both Governments are acting in good faith.

The most interesting thing to emerge from this is that the Scottish Government and the SNP are demanding more powers; they demand that all 111 should rest with the Scottish Parliament, regardless of the effect on the UK internal market. But they never talk about outcomes from these powers. They demand more and more, but they never tell us how they want to use them. Sadly, the nationalist narrative now is to just demand more, demand more, demand more, because they want independence. It does not matter how much you try to dress it up. The First Minister herself said that independence “transcends” everything else. It does not matter how the Scottish Parliament is currently exercising its powers, but they will never be enough, because independence is always the end goal, which was why, yet again at the weekend, we heard about potential new dates this year for another referendum. That is why there are fewer SNP Members sitting in the House, because people in constituencies such as mine, and Stirling, and West Aberdeenshire and Kincardine, to name just a few, are absolutely fed up with that rhetoric. As my hon. Friend the Member for Stirling rightly said, people want our Governments to work more constructively together. They are fed up with the rhetoric, fed up with the ongoing bickering and fighting and point-scoring. They want to see both Governments working together, and both Governments have demonstrated that they can do it. Both can work together over city deals, for example, to deliver for Scotland and for regions. People get really fed up when they see “The Andrew Marr Show” on Sunday morning and yet again there is the kind of rhetoric that we have had to endure in Scotland for not just months, but years.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health)

Did the hon. Gentleman watch the programme? The entire session was about Brexit. Andrew Marr asked the First Minister about independence—she was asked by someone else. You have just spent about five minutes talking about it, but suddenly it is the SNP banging on about it.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

I was not talking about the questions asked but about the answer given. That is the broken record. The First Minister has always had the opportunity to accept the result of 2014. She never has and she never will. That is why independence transcends everything else for the SNP. It does not speak in the national interest, but only ever in the nationalist interest.

To conclude, powers will come back from Europe and will be exercised directly in Scotland by the Scottish Parliament and Scottish Government Ministers. I know that the Scottish Government do not have a great track record when it comes to managing things in Scotland, so I understand their trepidation about any other powers going to the First Minister. That is no doubt why they want to keep all those powers in Brussels.

At least those of us on the Government side actually want devolution—not the kind of crazy centralisation that we have seen from the SNP. That is the hallmark of its Government and of the party here. That is why on this side we will stand up for Scotland and deliver for Scotland.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Brexit), Shadow PC Spokesperson (Cabinet Office), Shadow PC Spokesperson (International Trade)

I shall return, for a moment, to the European Union (Withdrawal) Bill.

I rise to speak to amendments 12 and 13 and the consequential 11 in my name and those of my hon. Friends. Amendment 12 to clause 19 would require the UK Government to gain the consent of the sitting devolved Administrations before the Bill came into force. At this stage, hon. Members should not rehearse previous arguments or submit previous amendments, so following my attempted amendment on day one of Committee which also sought to require the legislative consent of the devolved Administrations, I have addressed the critical point raised by other Members about Northern Ireland.

At the time of that previous amendment, there was no Northern Ireland Assembly to grant consent to the Bill and that, unfortunately, remains the case. My amendment, therefore, sets out that consent is required from all devolved Administrations unless direct rule is in place or the Administration have been formally suspended or dissolved for reasons other than recess or an election. Across the House, many of us would like the Northern Ireland Assembly to be up and running and serving its people once again, but if that was still not the case once the Bill was enacted, the amendment would still require the consent of the other Administrations.

To echo the Under-Secretary of State for Exiting the European Union, Mr Walker, this Bill is about continuity, certainty and control. It is now clear that the convention of gaining legislative consent is flawed, as it has been held to be just that: a convention. In contrast, the devolved Administrations have come to see it as a normal and required aspect of legislative processes. It seems to me that until recently, at least in how the process worked from day to day, that was also the view of the Westminster Government, who have sought legislative consent from the nations on hundreds of occasions since devolution.

The Minister has now confirmed that his Government are seeking legislative consent for this Bill as well. Given their own consistent actions, I am mystified about why they do not wish the principle of consent to be anywhere in the Bill—unless, of course, they plan to renege on that commitment, too. If I were a cynic, I might suspect that the Government here are happy enough to request consent as long as there is no risk that it might be refused, as might happen in this case. That is the Catch 22: consent is there only when it is granted.

I also note that hon. Members, including me, have repeatedly asked Ministers what would happen were consent to be refused. In response there has consistently been—well, no response at all. One case in point will suffice. At Welsh questions on 13 December, I asked the Secretary of State for Wales:

“What recent discussions he has had with the Welsh Government on a legislative consent motion for the European Union (Withdrawal) Bill.”

I added:

“I have asked the Secretary of State a number of times, both orally and in writing, what would happen if the National Assembly for Wales were to withhold its consent for the withdrawal Bill, and he has gone from looking hopelessly Panglossian to being unsure, evasive and even furtive. Will he now tell the House what would happen if the National Assembly for Wales withheld its consent for the Bill?”

His answer made my case—that the Government were either clueless or evasive—for me:

“I am optimistic that our work with the Welsh Government will lead to a legislative consent motion.”—[Official Report, 13 December 2017;
Vol. 633, c. 381.]

That was all: hopeless optimism and no real answer. Our leaving the EU has been characterised as taking back control, but surely to deny the sitting devolved Administrations their fair say on whether the Bill should be passed goes against the three principles of the Bill that the Minister set out: to provide continuity and certainty and to take back control. Control for whom?

I turn now to amendment 13 to clause 11, which also stands in my name and those of my hon. Friends. It is clear that the Bill in its current form would weaken the devolution settlements that the people of Wales, Scotland and Northern Ireland have enjoyed for 20 years. Even this Government have made it clear that clause 11 is not good enough and said that it will be amended. Our amendment seeks to guarantee that any future frameworks respect the democratic accountability of the devolved legislatures by being based on established conventions and practices that will not be adjusted without the consent of these institutions. That is the moot point: it is matter of consent.

The amendment holds that

“flexibility for tailoring policies to the specific needs” of the nations should be allowed, as is currently enjoyed under EU rules, and—most crucially—that these frameworks would

“lead to a significant increase in decision-making powers for the devolved administrations.”

Before Christmas, the Scottish Secretary gave a strong commitment that clause 11 would be amended on Report, based on the criticisms from across the Committee of the whole House. Unsurprisingly, I suppose, the Government have U-turned on this promise and failed to table any amendments that address the concerns about devolution raised by Members from across the House. What is even more striking is that this was brought to the Government’s attention again two days before the deadline for tabling amendments, yet they failed to act. In this, they have merely confirmed my point in an earlier debate that it appears they still have not accepted that the UK is a unitary nation and that we have more than one Parliament within the British state.

The Welsh Government cannot just continue to hope that something might turn up, waiting in hope for this Tory Government to see reason, so I am glad that Anna McMorrin noted that the First Minister had at last made a statement. I would also be glad if he could agree to the proposal for a continuity Bill that my friend in the Assembly, Steff Lewis, is bringing forward tomorrow. My party’s position in the long run is clear—we want the people of Wales to run their own affairs—but in the interim our sincerely held view is that we need a collaborative procedure for the creation of UK-wide frameworks to ensure good governance for the people of Wales.

Given that the Government are so determined to press ahead and remove us from the already functioning EU frameworks, these UK-wide frameworks will have a significant impact on the existing devolved settlements and therefore must be created jointly by all the sitting Governments, and not be dictated by Ministers of the Crown here. This is only the first step to ensuring that devolution is not just respected but upheld during the upheaval that the Government are creating by leaving the European single market and customs union.

Photo of Anna McMorrin Anna McMorrin Labour, Cardiff North

Does the hon. Gentleman agree that systems are already in place under which the Welsh and UK Governments negotiate together on EU discussions? UK Ministers are Ministers of the Crown, as are Welsh Ministers. That is already in place and just needs to continue. The amendment is necessary if it is to continue.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Brexit), Shadow PC Spokesperson (Cabinet Office), Shadow PC Spokesperson (International Trade)

I thank the hon. Lady for her intervention. It brings me to the very point I was going to make. The Joint Ministerial Committee (EU Negotiations), to which she was referring, had a very rocky start. Some hon. Members will know that it met last February and then not again until October. During that time, momentous events were taking place here. Huge changes were being made in the relationship between Wales and the EU, and in the United Kingdom’s relationship with the EU. However, the JMC, the very mechanism that was supposed to elicit the views of Welsh Ministers—and Scottish and Northern Irish Ministers, for that matter—did not meet. I am glad to say that since that suspension it seems to have recovered somewhat: the October meeting was much more positive.

The principles that underpin the JMC were agreed in order to ensure close working between the UK Government and the devolved Administrations on reserved matters and excepted matters that would have a significant impact on devolved Administrations. It was agreed that those principles would apply to common frameworks, but to ensure that that happens, we need to enshrine it in statute.

The Government habitually insist that “nothing is agreed until everything is agreed”. They must realise that unless they agree to the changes in the Bill that Members in all parts of the House want to see, they will not gain the consent of the devolved Administrations that they claim to be so easily able to obtain.

Photo of Ian Murray Ian Murray Labour, Edinburgh South 6:30 pm, 16th January 2018

I am delighted to follow the hon. Members for Stirling (Stephen Kerr) and for Aberdeen South (Ross Thomson), who highlighted the problem that we have had with the Government. I think that there should be an act of good faith this evening: the Government should accept amendment 3, tabled by Opposition Front Benchers, and if they want to alter it in the other place, they will be able to do so.

One of the key problems—and the hon. Members for Stirling and for Aberdeen South failed to answer this question—is that their premise for amending the Bill now is that when the negotiations are concluded between the UK and Scottish Governments through the JMC, the UK Government will take the basis of the negotiated settlement to the other place, make the appropriate amendments to the Bill, and then bring it back here. If the negotiations fall apart—and I take them in good faith, but the Scottish and UK Governments do not have a particularly good track record of cordial discussions, and it might be in one of the political interests of a political party of any colour to bring those negotiations down—there will not, according to their argument, be an amendment in the other place, and the Bill will therefore be unamended.

In that event, there would be no mechanism for the hon. Members for Stirling and for Aberdeen South, or, indeed, Paul Masterton, who raised these issues, to correct what they claim is a deficient clause. The hon. Member for Stirling said that it was not fit for purpose, and the hon. Member for Aberdeen South said that he would like amendments to be tabled on Report. The hon. Member for East Renfrewshire had previously abstained on the amendments to clause 11 because Ministers had promised him that they would table amendments. When making that promise, they never said that those amendments were dependent on the conclusions of a negotiated settlement, and the Scottish Conservative Members did not say that in their remarks to the press at that time of an emergency meeting between the 12 of them—excluding the Secretary of State for Scotland—to discuss this very issue. This has been concocted to save them embarrassment, and I feel sorry for them on that basis. Now they are saying again, in the Chamber, that they will not vote for amendment 3 because they have been promised that there will be an amendment in the House of Lords.

If that does not happen, there will be no mechanism enabling the 13 Conservative Scottish Members who said that they would fight to amend this “deficient” clause to do so. The Bill will come back unamended, we will have no powers to change it, and a “deficient”, “not fit for purpose” clause—their words, not mine—will end up on the statute book. That is not acceptable to this elected House.

I share those Members’ frustration that the unelected House will now be given the responsibility of changing the Bill, but let us look at the technicalities. The Government have no majority in the other place, so technically the other place may vote down any Government amendment. I admit that that is unlikely, but the promises that were given to the Back-Bench Scottish Conservative MPs were merely that. They have been let down already.

As my hon. Friend Jenny Chapman said, the best option would be to vote for amendment 3 this evening to establish the principle of amending clause 11, and if alterations are required in the other place following the conclusion of agreements—or, indeed, if the Government decide that they want to spend some time concluding the amendments—they can be made there and be brought back to this place, and we can then make those changes during the ping-pong.

I cannot understand why the Government have not brought forward the promised amendments on Report. We are always asked in this place to take the Government in good faith; they said those amendments would come forward, and on that basis in Committee I withdrew amendments, as did hon. Friends, and the Back-Bench Scottish Conservative MP Paul Masterton withdrew his opposition and voted for the clause and the Bill. We did so on the basis of those promises, and they have not been delivered.

I have no faith in those promises from the Government. I have no faith that the Scottish Government and UK Government, given that they play off against each other politically all the time, will come to an agreement that can be changed in the other place, and therefore the best way to resolve the problem this evening would be for this House to come to a consensual agreement on amendment 3 in the name of my colleagues on the Opposition Front Bench, so we can then say that the principle of changing clause 11 is on the face of the Bill.

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

I will speak to amendment 6 in my name and that of hon. Friends and colleagues. It is crucial in protecting the legislative competence of the Scottish Parliament and the Welsh Assembly. I am grateful for the cross-party support, but most of all I want to acknowledge the officials in the Welsh Assembly Government and in the Scottish Government who worked together to produce good amendments that we can support on a cross-party basis. We were able to introduce them in Committee and to reintroduce them on Report. I have absolutely no idea why the might of the UK civil service has been unable to do so for either stage. At this stage of the debate, I hoped to have the opportunity to debate the amendments promised to us by the UK Government to amend clause 11. I know that the fact that that has not happened has been a deep disappointment across the Chamber.

It is somewhat startling that amendments have been tabled that appear to be based on a presumption that clause 11 remains the same. That is why we cannot back those minor amendments. We were also told that the amendments had been tabled without consulting or agreeing with the devolved Administrations. We have heard a great deal about consultation and agreement, but I have no idea how we can strike an agreement on amendments without first seeing them; we have not even seen them. Members of the Scottish Government, and, I understand the Welsh Government, have not seen them either.

Unfortunately, Mr Duncan Smith is not in his place, but on a proposal about EU nationals today from the Commission he remarked that the Government should just smile and do nothing. It would appear that the Government are taking half that advice because we are not seeing that many smiles.

We have heard a great deal from the Scottish Conservatives about their unhappiness with their own Government. I wonder whether they will join in the opposition tonight and vote for the amendments that we have tabled, or vote for Labour Front Benchers’ amendment 3, which we do not think is perfect but it is better than what we have and we will support it. With the Scottish Conservatives and the Opposition, we have a majority in this place. That is a powerful voice that we could have here. Will the Scottish Conservatives vote with us, or will they be yet more Lobby fodder willing to prop up a failing and faltering UK Government who do not keep their promises?

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

I am going to make some progress.

On 6 December, the Secretary of State for Scotland was asked by MPs across this House about the amendments to clause 11. He said:

“The answer is that it will happen on Report”— the stage we are at now. He added:

“We have been very clear about this”— terribly clear it would seem—

The Committee stage is about listening and adapting to issues…we will table amendments to clause 11.”—[Official Report, 6 December 2017;
Vol. 632, c. 1021.]

They have not. Now we are at the stage where this will go to the House of Lords. It is a democratic abomination that the Scottish Parliament will have less of a say, and this House consequently will have less of a say, than the House of Lords. The Scottish Conservatives seem to be embarrassed about that. I wonder whether they are joined by anybody else who is even remotely embarrassed.

Photo of Pete Wishart Pete Wishart Shadow SNP Spokesperson (Constitution), Shadow SNP Leader of the House of Commons, Chair, Scottish Affairs Committee

As has been said, the Government do not even have a majority in the House of Lords. What does my hon. Friend feel about the newly ennobled Bishop of Chichester, who will now have a bigger say on these amendments about critical issues to do with the devolution settlement than my hon. Friend, Stephen Kerr and me?

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

As usual, my hon. Friend makes a very good point.

I want to make it clear that the points I make about the House of Lords have no bearing on its Members’ personal characteristics. Rather, I am referring to the anti-democratic situation in which we find ourselves. I presume that we are now in a situation in which a Scotland Office Minister, appointed after losing an election, will debate these matters with Lords who are there by accident of birth or as a result of political patronage, and that this will happen after Third Reading. That is absolutely shameful. It should shame everyone involved. “Bring back democracy”, Vote Leave supporters cried. “Return our independence”, they cried. They also cried, “Bring back our blue passports”, even though they could have had those all along. After this, we can even have commemorative stamps. Does no one see the irony for democracy? I know that the Speaker wants me to make some progress on this—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. That is rather an understatement. I am looking for an opportunity for the Minister to reply to the debate, so I am sure that the hon. Gentleman will be approaching his peroration ere long.

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

I will. I know that the Minister wants to respond and pick up on some of the points that have been raised, but as I represent the governing party of Scotland, I would also like to make some points on where we are with this—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. I say with due courtesy, but absolute insistence, to the hon. Gentleman that the Minister will rise to speak no later than 6.45. That is not advice; I am telling the hon. Gentleman that that is the situation.

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

I should like to thank the Speaker for his guidance on that—

Photo of Stephen Gethins Stephen Gethins Shadow SNP Spokesperson (International Affairs and Europe)

Thank you, Mr Speaker.

Let me make these points. What accountability is there on the promises that were made during the EU referendum? The Secretary of State for Scotland told us that we would have a “powers bonanza”, but there has been nothing. The Environment Secretary said that we would get powers over immigration, but there has been no accountability over that. The Foreign Secretary said that there would be £350 million for the NHS, and quite remarkably, he doubled down on that last night. No shame whatever. Is it any wonder that the latest NatCen survey shows that, rather than 59% of people in Scotland thinking that the Government are handling this badly, the figure has shot up to 67%? Stephen Kerr mentioned this earlier.

Let us compare that to the attitude of the Scottish Government on this. The amendments that have gone down have been drafted working with colleagues from across this House and across the Administrations. We published our amendments in due time. Even yesterday, the Scottish Government used the economists that they have at their disposal to publish—not keep secret—their analysis of Scotland’s place in Europe. It showed an 8.5% loss in GDP, equating to £2,500 for every person in Scotland, through losing the value of EU nationals. Leaving the single market will be devastating. On this, I make a gentle point to our Labour colleagues, many of whom have stuck out their neck on the single market. This Government are on the ropes and we could have a majority that could achieve a sensible outcome. I urge my colleagues on the Labour Benches to reconsider some of their options on this. We can stay in the single market.

In conclusion, compromises can be reached but we must see the amendments. All of this is happening even though we were told that the only way to stay in the EU was to vote no. Two thousand years ago, the first Scot in recorded history, Calgacus, was said to have told his followers about the Romans:

“They are the only people on earth to covet wealth and poverty with equal craving. They plunder, they butcher, they ravish, and call it by the…name of ‘empire’.”

As we leave the European Union, we have nothing on clause 11, nothing on the rights of EU citizens, nothing about what will happen to our trade, and nothing on the opportunities for young people. That leads me to conclude that the only plan that the Brexiteers have is to create a desert and call it Brexit.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

The debate has been lively and has ranged quite widely over various aspects of the impact of this country’s withdrawal from the European Union on the devolution settlements. I therefore want to make it clear from the start that the Government’s expectation and intention are that the return of competences from the European Union will result in a very significant addition to the powers exercised in future by the devolved Administrations on the bases set out in their respective devolution statutes. However, we have to go about this complex task in the right way for the sake of individuals, families and businesses in every part of the United Kingdom, because the devolution settlements were negotiated, debated and enacted on the basis of certain competences being known to be within the power of the European Union and, on the quite reasonable assumption at the time that the devolution statutes went through this House, that that would continue to be the situation.

Broadly speaking, there are two key reasons why the Government have proposed the overall approach that is set out in the Bill. First, some EU competences straddle elements of both devolved and reserved powers. For example, the common fisheries policy deals with matters that would logically fall within the terms of the devolution settlements, but it also comprehends both multilateral and EU third country international agreements, which under the terms of the Scotland Act 1998—it would also apply to the other devolution Acts—are expressly reserved to the United Kingdom by virtue of their being international agreements. Secondly, the Government’s purpose is to ensure that the interests of everyone in every part of the United Kingdom is protected by the continuation of a single United Kingdom market in both goods and services. In plain language, that means that a manufacturer in Paisley would still be able to sell to a customer in Preston and not have to worry about a set of different product standards or chemical regulations, for example.

I cannot emphasise strongly enough that no power whatsoever that is currently exercised by the devolved Administrations will be removed or harmed by this Bill. On day one after we leave the European Union, those devolved powers will remain as before. Competences currently exercised at European Union level will transfer to the United Kingdom and will remain at United Kingdom level until, but only until, we can sort out the practicalities of apportioning competences in accordance with the devolution Acts while protecting the single market of the United Kingdom and the provisions of the United Kingdom’s international agreements.

The Government want the process of apportioning powers to be as smooth and as swift as possible. Therefore, since the Bill was in Committee, we have reflected carefully on the debates and have discussed the way forward with political leaders in Scotland, Wales and Northern Ireland. We are proposing a number of amendments that respond to the concerns expressed during those earlier debates and are actively taking forward discussions with the leaders of the devolved Administrations with a view to bringing forward additional amendments in the House of Lords.

Moving on to the detail—

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I will give way briefly to the hon. Lady, who has not made a speech in this debate.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

May I congratulate the right hon. Gentleman on his new job? I was absolutely delighted for him. He just mentioned that, in the absence of a Northern Ireland Assembly functioning as we would want it, he has had discussions with leaders of political parties in Northern Ireland—that is what I understood him to say—so will he list which leaders of which parties he has had discussions with?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

Parties have all been briefed on the Government’s position and therefore have had the opportunity to put forward their points of view. Obviously, in the absence of a functioning Assembly and Executive in Northern Ireland, we have regular contact with the civil service authorities in Northern Ireland, which are maintaining the administration of Northern Ireland in accordance with Northern Ireland law.

Photo of Sylvia Hermon Sylvia Hermon Independent, North Down

I am grateful to the Minister for taking another intervention.

I am very disappointed. I sit as an independent, and I take my seat in this House. Sinn Féin Members, seven of them, are absentee MPs. I would be extremely offended if I thought for one moment that the leader of Sinn Féin in Northern Ireland—she is not elected to this House—had been consulted when I had not.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

The hon. Lady and I have known each other for a long time, and having now had overall responsibility for intergovernmental relations and devolution in the United Kingdom for seven days, I am happy to undertake to make it a priority to have that conversation with her to ensure that her views are properly heard.

Government amendments 26 and 27 will replace the current requirements for devolved Ministers to seek the consent of the United Kingdom Government when exercising the correcting power in specific ways with requirements instead to consult the United Kingdom Government. That achieves the same effect as Committee amendment 169, which was proposed by the Scottish and Welsh Governments and tabled in the name of Stephen Doughty. Having discussed the matter with those Administrations and having listened to the debate in Committee, we have agreed to accept that proposal, with the addition of extending the change to the power by conferring it on the Northern Ireland Executive.

The United Kingdom Government have a vital role in considering the broader consequences for other parts of the UK where devolved Ministers legislate under these powers, and we think this change is justified. It remains important that, in using the conferred power, no action is taken that inadvertently places us in breach of EU law while we are still a member state or that would prejudice or pre-empt the outcome of negotiations; but on reflection, we consider that the devolved Administrations consulting with the UK Government before legislating in these specific circumstances relating to our negotiations will provide a sufficient safeguard and will preserve the autonomy of the devolved Administrations in correcting their laws.

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

The hon. Gentleman will forgive me, but there are a lot of amendments in this group and I want to try to do justice to them.

Government amendments 25, 28 and 29 tackle a technical but important issue by allowing the devolved Administrations to use the powers conferred on them by schedule 2 to modify directly retained EU legislation in areas where a common framework is not needed. While we work with the devolved Administrations on where frameworks are or are not needed, we are maintaining existing common approaches to provide much welcomed certainty. To aid that, direct EU legislation that currently applies uniformly across the UK will be corrected at UK level in the first instance to avoid the risk of early, unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. We have listened to the views of Opposition Members, my hon. Friends who represent constituencies in Scotland and Wales, the devolved Administrations and Committees in the devolved legislatures.

Given that the UK Government are committed to making swift progress on the frameworks, we agree that, where a matter is released from the clause 11 competence arrangement, the powers in the Bill should be fully available to the devolved Administrations to modify retained direct EU legislation, and we intend that that will be in the majority of areas. We and the devolved Administrations continue to make good progress in those framework discussions. We intend to agree as many areas as possible where frameworks are not needed in advance of exit day, so that those areas may transfer directly to the devolved Administrations without the need for an intervening period in which to operate the holding pattern described in the clauses.

Like my hon. Friends the Members for Harwich and North Essex (Mr Jenkin), for Ochil and South Perthshire (Luke Graham), for Stirling (Stephen Kerr) and for Aberdeen South (Ross Thomson), I am disappointed that we have been unable to reach agreement with the Governments of Scotland and Wales to make amendments to clause 11 on an agreed basis. That remains the Government’s ambition. When I spoke to the Deputy First Minister of Scotland and the First Minister of Wales a few hours after being appointed to my new responsibilities last week, I emphasised that I was instructing our officials to work with theirs even more intensively to try to achieve that agreement.

The discussions so far have revealed a great deal of common ground between us. For example, we are all agreed that common UK frameworks will be required in some areas even after we have left the EU. That was also recognised in Committee and reflected a shared understanding about protecting the internal UK market, managing common resources and meeting international obligations. But this is a complex area and we need to get it right, and we do not believe that amendments 3, 6 and 13 would achieve that. It is our assessment that in only a minority of cases will we require a legislative framework, in whole or in part.

I can confirm today that the Government will shortly publish our analysis of the areas where frameworks will and will not be needed, so that we are transparent about this progress as our discussions on both clause 11 and frameworks move into greater detail. I also wish to acknowledge the co-operative approach of both the Scottish and Welsh Governments and their officials in working with us towards the right outcome. I have full confidence that we will deliver this Bill with the legislative consent of both the Scottish Parliament and the National Assembly for Wales.

Let me turn to the Opposition amendments. Amendment 3, from the Opposition Front-Bench team, and amendments 6 and 13, standing in the names of the hon. Members for North East Fife (Stephen Gethins) and for Arfon (Hywel Williams), relate to the temporary arrangements established by clause 11, so that we might determine where and how frameworks would operate. The trouble with these amendments is that they would strip away certainty in areas where our citizens and our businesses rely on having common approaches across the UK, and they would pre-empt our framework discussions. They would risk our ending up when we leave the EU with unchecked divergence where common approaches were in place, with no guarantees of if and when they might be re-established. That is simply not good enough. I do not think it right to accept such amendments, which would inadvertently risk creating new barriers to living and doing business right across the UK, however well-intentioned they might be.

Photo of Ross Thomson Ross Thomson Conservative, Aberdeen South

Does my right hon. Friend agree that we have heard a lot of talk about respect between both Governments and that being why we should accept the amendment, but that in not securing Joint Ministerial Committee agreement and in not securing a legislative consent motion this actually shows no respect for that process and is simply a stunt?

Photo of David Lidington David Lidington Chancellor of the Duchy of Lancaster, Minister of State (Cabinet Office)

I agree with my hon. Friend.

Let me turn to the amendments from Joanna Cherry, who again raised the important debate between “necessary” and “appropriate” provisions made under the Bill. Members will not be surprised to know that “necessary” is a very strict legal test. It could be interpreted by a court as “logically essential”, and where two or more choices of law to correct EU law are available to Ministers, arguably neither one is strictly necessary because there is an alternative. So Ministers need to be able to exercise discretion to choose the most appropriate course. For example, if two agencies could arguably carry out a particular function, the UK Government—or in this case the devolved Administration—must propose that which would be the most appropriate choice. That is why we have chosen the word “appropriate” and would wish to stick to that.

The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend Mr Grieve, who was supported by my hon. Friend John Penrose.

We must ensure that we can correct all deficiencies that may arise from our withdrawal, but our amendments put beyond doubt that some of the wilder speculation on how powers in the Bill would be used will not be possible, by providing an exhaustive list of the types of deficiency and taking up the constructive suggestion of my hon. and learned Friend Mr Cox. That is the act of a responsible Government responding to the debate we have listened to in the House. I hope that—

Debate interrupted (Programme Order, this day).

The Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.

Question negatived.

The Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

Amendments proposed: 21, page 17, line 24, leave out “reference” and insert “references”.

This amendment is consequential on amendment 15.

Amendment 22, page 17, line 24, after “7(2)” insert

“and (2A) (but not the reference to a Minister of the Crown in section 7(2A)(b))”.

This amendment is consequential on amendment 15.

Amendment 23, page 17, line 25, leave out “a reference” and insert “references”.

This amendment is consequential on amendment 15.

Amendment 24, page 17, line 26, after “authority” insert

“and the references to section 7(1) being reapd as references to sub-paragraph (1) or (2) above”.

This amendment is consequential on amendment 15.

Amendments 25, page 18, line 9, at end insert—

“‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.

( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.

( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.”.

This amendment allows a devolved authority to make provision by regulations to prevent, remedy or mitigate deficiencies in retained EU law, under Part 1 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

Amendment 26, page 18, line 15, leave out

“without the consent of a Minister of the Crown”.

As the Bill stands, a devolved authority cannot exercise its powers to prevent, remedy or mitigate deficiencies in retained EU law, under Part 1 of Schedule 2, to make regulations that come into force before exit day and remove certain reciprocal arrangements, without the consent of a Minister of the Crown. This amendment and amendment 27 would replace that consent requirement with a requirement that the devolved authority consults the Secretary of State.

Amendment 27, page 18, line 20, at end insert “, unless the regulations are, to that extent, made after consulting with the Secretary of State.”

See amendment 26.

Amendment 28, page 23, line 32, at end insert—

“‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.

( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.

( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.””

This amendment allows a devolved authority to make provision by regulations to prevent or remedy a breach of international law arising from withdrawal, under Part 2 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

Amendment 29, page 26, line 11, at end insert—

‘( ) This paragraph does not prevent the Scottish Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 29(4C) of the Scotland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (4A) of section 29 of that Act if the provision were made in an Act of the Scottish Parliament when that subsection and the Order are in force.

( ) This paragraph does not prevent the Welsh Ministers from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 108A(10) of the Government of Wales Act 2006, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (8) of section 108A of that Act if the provision were made in an Act of the National Assembly for Wales when that subsection and the Order are in force.

( ) This paragraph does not prevent a Northern Ireland department from making provision in regulations under this Part if—

(a) the provision is made when there is an Order in Council under section 6(8) of the Northern Ireland Act 1998, and

(b) the provision would, by virtue of the Order, not be in breach of the restriction in subsection (6) of section 6 of that Act if the provision were made in an Act of the Northern Ireland Assembly when that subsection and the Order are in force.”

This amendment allows a devolved authority to make provision by regulations to implement the withdrawal agreement, under Part 3 of Schedule 2, so as to modify retained direct EU legislation or anything that is retained EU law under Clause 4. In relation to each devolved authority, a modification would be allowed where the relevant devolved legislature would not, by making the modification in an Act, breach the restriction inserted by Clause 11 relating to retained EU law, because of an Order in Council made under the power conferred by that Clause. The amendment would also allow regulations to be made, in equivalent circumstances, that are inconsistent with modifications of retained direct EU legislation etc made by a Minister of the Crown or the Bill.

Question put (single Question on amendments moved by a Minister of the Crown), That amendments 21 to 29 be made.—(Mr Lidington.)

The House divided:

Ayes 317, Noes 297.

Division number 94

See full list of votes (From The Public Whip)

Aye

No

Question accordingly agreed to.

Amendments 21 to 29 agreed to.

Clause 11