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

Part of the debate – in the House of Lords at 9:15 pm on 2nd May 2018.

Alert me about debates like this

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 9:15 pm, 2nd May 2018

I am most obliged to noble Lords for their contributions to this debate. I am essentially moving a series of very complex and extensive amendments to the Bill, from Amendment 89DA through to Amendment 92AD, with consequential amendments from Amendment 89DB through to Amendment 117C. The noble and learned Lord, Lord Wallace, has moved his own amendments on sunsetting constraints, which I shall address; and the noble and learned Lord, Lord Hope, has moved extensive amendments from Amendment 89DAA through to Amendment 92BBA—and, indeed, could have extended his Motion for amendment further than that, I suspect.

At the heart of this lies a simple principle. The EU has developed and maintained a single market for the benefit of the members of the Union. As we exit the EU, we are anxious to maintain a single market for the benefit of the union of the United Kingdom. That is what it comes to. In doing that, we must of course respect the devolution settlement and the position of the devolved entities and parliaments, whether in Scotland, Wales or Northern Ireland—even though at present it is not sitting as an Executive, which we acknowledge.

I am not going to address the original Clause 11. Noble Lords have expressed their views on that and I do not need to either add to them or necessarily rebut them; we are anxious to move on, and to move this amendment. What are we intent on doing? Well, I would counter the suggestion from the noble Lord, Lord Wigley, that this is a power grab. Such rhetoric has been thrown about before, of course, and I do not feel that it would advance matters to engage with that sort of rhetoric. I just remind noble Lords of the terms of the amendment itself. If your Lordships have the Marshalled List of amendments, at page 7—or, for the noble Lord, Lord Wigley, page 8, where it refers to Wales—I simply read out proposed new Clause 30A(1):

“An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown”.

We know that there is then an elaborate process for the making of those regulations; the noble Lord, Lord Thomas of Gresford, referred to the stages that would be gone through in the making of those regulations. Let us then look at subsection (2):

“But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Parliament”.

There is no intention here to intrude upon the existing legislative competence of the parliaments. But of course, as powers come back, it is necessary to consider which of those powers have to be maintained in order that we can have a functioning internal market in the United Kingdom. That is the objective and what we seek to do. All powers pass to the devolved Administrations on exit day where no regulations have been made under the proposed amendment. That is the right policy outcome that we have agreed with the Welsh Government and which we still seek to agree— I emphasise still—with the Scottish Government.

That takes us on to the question of how the frameworks have been arrived at. Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to “principles”, that refers to the principles that were agreed at that stage and are carried over in the agreements. At the present time, we have identified 24 areas of retained EU law—or what will be retained EU law—where we require frameworks to maintain an internal United Kingdom market. There is debate about some additional areas, which will have to be addressed in due course. We have focused our attention now on 24; it may be fewer at the end of the day, as we talk our way through them, because they apply only to particular areas of policy, not to one general area. We are not talking about agriculture or fisheries, we are talking about discrete aspects of these policy areas that are perceived to be necessary in order to maintain the UK internal market.

Perhaps before I move on, because a number of noble Lords have raised the point, I should address the question of how the regulations will operate. That can be seen from the proposed amendment, and there are two elements to it. Proposed subsection (7) says:

“No regulations may be made under this section after the end of the period of two years beginning with exit day”.

That is the first period of two years. If no regulations have been made in respect of what is perceived to be a necessary framework, no regulations will be made. Proposed subsection (9) says:

“Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period”.

Therefore, in so far as we have not taken that forward, these powers will then revert to the appropriate authority.

As regards those periods, perhaps I may respond to two points, one made by the noble Lord, Lord Thomas of Gresford, and the other by the noble and learned Lord, Lord Wallace. First, it will be possible to revoke those regulations before the five-year period—that is, the outlier that is, as we say, the sunset clause. Under the terms of the Interpretation Act, it is implicit that where there is a power to make regulations by the affirmative procedure, there is a power to revoke those regulations by the affirmative procedure. The same procedure would be used to take them out as to put them in. That is how we would intend to proceed in that context.

On the period of the clause and the suggestion that it should be reduced to three years, there have been considerable and in-depth discussions between officials as well as Governments with regard to these provisions. In light of those detailed discussions, particularly at official level, it was concluded that a period of five years would be appropriate for the second part of the sunset provision. That is why we have arrived at the period of five years, and we feel that in light of the advice given in that context, it would be appropriate to maintain that period of five years. I cannot say that there is some formula I can apply to justify five years; it is based on the in-depth analysis that has been carried out over a period of time since October last year with regard to how we will deal with these frameworks.

Of course, there may be a situation in which, after exit, regulations have not been made, in which case powers will then—