European Union (Withdrawal) Bill - Report (5th Day)

Part of the debate – in the House of Lords at 7:00 pm on 2nd May 2018.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 7:00 pm, 2nd May 2018

My Lords, to be clear, the noble and learned Lord, Lord Wallace, indicated that he was not going to move Amendment 89, but government amendment 89AA was to follow from that amendment so I would just like to address our amendment in order to avoid confusion. I am afraid that this is like one of those smart restaurants where you get a series of amuse-bouches before you get to the main course.

Amendment 89AA replicates the restriction that we have already applied to Clause 9 on the withdrawal agreement power in relation to imposing fees and charges for the corresponding power for devolved Ministers. This follows exactly the same rationale as the Clause 9 power. It has never been our intention for these powers to be used to impose fees; that is the preserve of the bespoke Schedule 4 powers, which are exercisable by devolved Ministers and should be subject to the limits that apply to those powers. This same restriction has already been applied to both the correcting power in Clause 7 and its Schedule 2 equivalent. The devolved Administrations were informed in advance of our intention to apply this restriction to that power and have agreed to its effect, so I hope noble Lords will support the amendment.

I turn to Amendment 89DA and the group that follows it. I thank noble Lords for their constructive engagement on this important issue during the passage of the Bill. The Government have now tabled a comprehensive set of amendments to Clause 11. We have worked with the Scottish and Welsh Governments to develop them, and noble Lords will recognise that we have drawn heavily on their consideration of our initial amendments in Committee. I put on record our thanks to this House, and to the Scottish and Welsh Governments for their endeavours in crafting these amendments. We are immensely pleased that the Welsh Government have agreed this approach and I am of course disappointed that the Scottish Government have not. I hope they will sign up in due course.

The intention behind Clause 11 as originally drafted was to provide maximum legal certainty across the UK to our communities and businesses after EU exit in areas that are subject to a common EU framework. As the Welsh Government aptly put it,

“it is essential to provide legislative continuity at the point at which the UK leaves the EU”.

We know, of course, that the EU has common legislative arrangements across a vast range of areas, but we must now decide in which policy areas we may need to continue those common arrangements legislatively, informally or not at all. To provide the time to do that work and provide assurances that there would not be immediate divergence across the UK, the original Clause 11 sought to freeze the law in all those areas.

We are all familiar with the views of the devolved institutions on this clause, and of course the Government have accepted the case for a more targeted and proportionate approach. This has been supported by the work that we have been doing with the devolved Administrations on assessing these current frameworks. Since we agreed the framework principles, which set out why common approaches may be needed across more than one part of the UK, our Governments have worked closely to analyse those policy areas that sit across devolved competence and EU law.

Noble Lords will recall that in March we published our initial analysis. It demonstrated that our work with the devolved Administrations indicated that legislative frameworks may be needed, in whole or in part, in only 24 of the 153 areas that had been identified, and 82 areas could be managed through more informal, non-legislative arrangements. The remaining 49 areas would likely require no further arrangements at all. We also agree that where common approaches are needed, they cannot all be designed and implemented by exit day. So it continues to make sense to maintain existing frameworks and provide certainty over which areas may be subject to change in the future, but we can and should do this in a more measured way.

Our amendments in Committee set out targeted mechanisms for doing so, following discussions with the Scottish and Welsh Governments. We have carried forward the basic proposition from Committee and have built on that in the amendments that we have put forward today. Our amendments would see powers returning from the EU in otherwise devolved areas pass directly to the devolved institutions. Where a common legislative framework may be required, we propose to freeze the current arrangements to provide the time to establish our own framework for the UK. This would apply only to those policy areas that have been explicitly frozen through regulations, rather than across all policy areas where EU law currently creates common frameworks. That was the proposal that we put forward in Committee and that we had been discussing with the Welsh and Scottish Governments. We withdrew our amendments because discussions with those Governments were ongoing and we were committed to continuing them. Our Committee proposal was a substantial, but not a final, offer. It meant that noble Lords were able to debate the very latest proposition and inform those discussions.

One theme raised here and by the devolved Administrations was consent. The devolved Administrations thought it right that there was a role for the devolved legislatures in deciding whether specific areas should be the subject of a freeze. We also heard that in the debate in this House. This House agreed that a role for the devolved legislatures was important in this process, but that it must be balanced against preserving the right—indeed, I would say, the responsibility —of the United Kingdom Parliament to act, where there may be a cross-United Kingdom impact. Only the UK Parliament can do that.

The Government listened carefully to the submissions on this matter and reflected them in discussion with the devolved Administrations over Easter. We have amended the Committee proposal. We shall seek to agree which areas should be subject to a freeze. This is part of the bigger frameworks question that we continue to progress.

We should also have the view of the devolved legislatures, not just the Administrations. Our amendments ensure that, before the UK Government may lay regulations in draft in this House, they must have sent them to the devolved Administrations and sought the consent of the legislatures. The devolved legislatures will have 40 days in which to decide whether to give or withhold consent for the regulations. Only after that decision is given or the 40 days have passed can the United Kingdom Government lay the regulations before Parliament. This process is built on collaborative working. It favours agreement for freezing areas, but also recognises that if agreement cannot be reached, it must be for the UK Parliament to decide what is in the interests of the UK as a whole.

We believe that this approach should minimise areas of disagreement, as we have also developed a comprehensive intergovernmental agreement that supports and complements the legislative amendments we are considering today. It emphasises that we will work on these regulations together and in advance of sending them to the devolved Administrations formally.

Where there is unavoidable disagreement and the United Kingdom Government consider that they must proceed in the absence of consent from a devolved legislature, UK Ministers would be under an express legal duty to provide this Parliament with a Statement, and, if provided, a statement from the devolved Administration on why consent was not being granted. The UK Minister will be under a duty to explain to Parliament why the Government consider that they must proceed without that consent. Parliament will decide on the case presented: whether it is indeed in the best interests of the United Kingdom to freeze a specific policy while we implement new arrangements.

I should also remind noble Lords of the additional reporting duties on UK Ministers. I do not wish to repeat the detail that I provided to the House on them in Committee. Needless to say, they ensure heightened accountability by providing transparency to the process of developing frameworks, the use of the regulation-making powers and where frameworks are maintained in the short term. They will also require us to report on those principles that underpin this work, the principles agreed between the United Kingdom, Scottish and Welsh Governments at the Joint Ministerial Committee in October last year. Through this, our work on future frameworks is open to the scrutiny of this Parliament and of the devolved legislatures.

The other key change to the amendments that I should mention, as compared to the proposals that noble Lords considered in Committee, is the addition of sunset provisions for both the new powers and the regulations made under them. This was raised explicitly by noble Lords in Committee. We have always said that any freeze under Clause 11 would be temporary. The amendments place that beyond doubt by making it explicit in law.

I am grateful to noble Lords for the constructive manner in which they have engaged with the question of sunsets. In particular, I must give due credit to the noble and learned Lord, Lord Wallace, for the tenacity with which he has pursued this, including by tabling his amendments. I hope that he will be satisfied that his concerns in this respect have been addressed and will feel able not to press those amendments.

The powers last for only two years from exit day. This aligns them with the other powers in the Bill and makes certain that they will not be an ongoing mechanism for limiting competence. The regulations will also be time-limited. We have had in-depth discussions with the devolved Administrations on how long is needed to determine and implement our future frameworks. We have settled on a period of five years from when regulations come into force.

We have agreement from the Welsh Government that five years is the right period. It accounts for the detailed work that we still need to undertake on designing new arrangements and time for implementation. That is only the upper limit. In any areas where we have put future arrangements in place, we can and indeed will repeal those Clause 11 regulations sooner.

The progress we have made does not end with the amendments before your Lordships, just as our collaboration with the devolved Administrations does not end simply at the point required by law. The agreement and memorandum that we have co-authored and signed with the Welsh Government set out the commitments that we have made to each other to underpin these joint undertakings. The Welsh Government’s report on securing Wales’ future after we leave the EU argued that we needed,

“imagination and vision to stimulate new ways of joint working among administrations outside the EU”.

I believe that this agreement demonstrates that. It makes clear that Clause 11 regulations will not affect the operation of established conventions and practices where we need to enact framework arrangements in future. It also makes clear how we and the devolved Administrations will work together, using the powers in the Bill, to prepare our laws for exit day.

Paragraph 10 of the agreement also sets out the position we have reached with the Welsh Government on their continuity Bill. That is that steps will be initiated to secure the repeal of the legislation passed by the Welsh Assembly as a possible alternative to the withdrawal Bill before the withdrawal Bill receives Royal Assent. I may say that we are still in discussion with the Welsh Government about how that repeal should be given effect. If any amendments to this Bill are appropriate in relation to that paragraph, we will propose them at Third Reading.

I am grateful to the Welsh and Scottish Governments for their co-operation and contribution to the proposals before noble Lords, and for the constructive manner in which they have engaged with us. Of course, I am particularly grateful to the Welsh Government and their officials for finding a way forward that delivers a reasonable and agreeable compromise. I am glad that they have recognised the movement that we have made, the trust that we have built, and welcome the fact that they have also moved to meet us, acknowledging the need for legal certainty for the United Kingdom as a whole.

It is regrettable that the Scottish Government have been unable to do the same. I believe that we can reflect positively on the role that they have played in developing these amendments. This was collaborative work in the best sense, and I think we can agree that it has delivered for both sides. As a result, I think it is only right that the provisions that we have proposed none the less speak to Scotland and to Northern Ireland as well. My hope is that the Scottish Government will sign up to this agreement, and I continue to urge them to do so.

In the absence of Northern Ireland Ministers, officials have also engaged on the technicalities of the Bill with the Northern Ireland Civil Service to ensure that the provisions work for Northern Ireland, without prejudice to the views of incoming Northern Ireland Ministers. The Government’s focus remains on restoring devolution in Northern Ireland so that Northern Ireland Ministers can engage substantively on these issues.

If Committee is anything to go by, I look forward to a lively debate on these amendments, but a thoughtful, reasoned, and constructive one. On this issue in particular, we are in novel territory and we have looked to others for their suggestions. I thank noble Lords for their suggestions, which have shaped our proposals, and their efforts in engaging the devolved Administrations. I should of course give special mention to the noble and learned Lords, Lord Mackay and Lord Hope, who have ably led the House in scrutinising the Government’s proposals and endeavouring to broker compromise here. The amendments we have tabled today are a reflection of our joint working with all parties. They show how far we have come and the sincerity with which we, and indeed the devolved Administrations, have approached this matter. I beg to move.