European Union (Withdrawal) Bill

Baroness Chapman of Darlington Excerpts

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

[Jenny Chapman (Darlington) (Lab)]

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

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

With this it will be convenient to discuss the following:

New clause 65—Role of Joint Ministerial Committee—

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

(a) for discussing—

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

(ii) proposals to amend retained EU law;

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

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

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

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

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

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

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

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

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

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

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

(i) in negotiating and concluding the withdrawal agreement;

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

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

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

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

(a) the Prime Minister, or

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

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

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

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

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

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

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

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

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

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

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

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

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

“omit ‘or with EU law’”.

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

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

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

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

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

“omit ‘or with EU law’”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Clause 11 stand part.

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

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

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

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

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

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

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

“omit ‘or with EU law’”.

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

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

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

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

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

Amendment 187, page 30, line 4, leave out

“before ‘EU’ insert ‘Retained’”

and insert “omit ‘EU law’”.

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

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

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

That schedule 3 be the Third schedule to the Bill.

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

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

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

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

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

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

Amendment 180, page 23, line 25, leave out

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

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

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

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

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

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

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

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

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

Amendment 190, page 51, line 1, leave out

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Jenny Chapman]

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

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

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

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

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I completely agree with the point my hon. Friend is making so eloquently. Does the news from Brussels in the last few minutes about the complexity of the negotiations not show that the Bill, and the whole process of Brexit, will have far greater consequences for our country, not just for the economy but our whole constitutional settlement and the way we run our affairs here in these islands? The very serious consequences needed to have been much more clearly thought through by the Government.

[Jenny Chapman]

I encourage Ministers to listen very carefully to what my hon. Friend says. Like me, he has a deep concern about what clause 11 may mean for the devolved Administrations. We watch with alarm the statements being made today. We hope the position is clarified very quickly.

[Mike Gapes (Ilford South) (Lab/Co-op)]

My hon. Friend refers to Donald Dewar. The basis for the devolution process came about via referendums in Scotland, Wales and both parts of Ireland to agree the frameworks under which we now operate. Is it therefore not a contempt, an insult, to the people as a whole—not just this House—for the Government to undermine the Good Friday agreement and the devolution settlement, which was endorsed by the people in referendums?

[Jenny Chapman]

My hon. Friend is right. People voted for these powers to be devolved and it is wrong for the Government to attempt to use Brexit as an excuse to bring them back to London.

The historian Professor Tom Devine called Scottish devolution and the establishment of the Scottish Parliament

“the most significant development in Scottish political history since the union of 1707.”

The Conservative party may have been opposed to devolution in the 1990s, and the Scottish, Welsh and Northern Irish Administrations may not have been conceived of in the early ’70s, but they are now an important and respected integral part of the constitutional architecture of our country.

The Good Friday agreement could never have succeeded without devolution to Northern Ireland, and, in the view of many of those involved at that time, the fact that devolution to Scotland and Wales took place at the same time as the Good Friday negotiations helped to ease some misgivings about the process.

Two nations of our Union voted to remain in the EU and two voted to leave. Our nations are run by different parties with different views about what Britain should look like after Brexit. The challenge for the Government therefore is significant. Just because it is challenging, however, does not mean the Government should attempt to take shortcuts that undermine the credibility, autonomy or sharing of decision making that are now an accepted feature of our democracy.

[Ian Murray (Edinburgh South) (Lab)]

I pay tribute to my hon. Friend for all her work on the Bill. Is she surprised, as I am, that the 12 new Scottish Conservative Members of Parliament were sent here by the Scottish Conservative leader, Ruth Davidson, under the banner of standing up for Scotland, yet it appears that, with regards to the Bill and these clauses, all they will be standing up for is the Government Whips Office?

[Jenny Chapman]

We will have to wait until later this evening to see which Lobby they choose to walk through. I, like my hon. Friend, was encouraged by some of the comments from Ruth Davidson and her hopes for the new group of Conservative Tory MPs, but we shall see if they live up to the billing she has given them.

Whether they want to or not, the Government must adapt to the very different constitutional circumstances that now exist. They are very different from those that existed before 1973. Clause 11, which is intolerable to the devolved Administrations, sets it as the default that powers currently exercised in Edinburgh, Cardiff and Belfast within EU frameworks will be ripped away and held in London. First Ministers are calling this a Whitehall power grab.

[Lucy Frazer (South East Cambridgeshire) (Con)]

The hon. Lady is making a passionate speech, but does she accept that powers are not being ripped away, given that they are not there for the devolved Administrations at the moment? [Interruption.] Whether hon. Members think it right or not, as a matter of law those powers are vested in the EU, so if they come back to the devolved Administrations, they will be additional powers. Powers are not being taken away.

[Jenny Chapman]

I think that the hon. and learned Lady has not—if I may be polite—quite grasped what we are talking about. We are talking about a framework, within which the devolved Administrations currently make decisions, that is held now at the EU level. Our desire is for a UK framework that enables those decisions to continue to be made by the devolved Administrations. It is very different from saying, as I anticipate some Government Back Benchers will claim, “Well, the powers are currently held in Brussels, so why is everybody so worried about it?” Actually, the decision making is held in Belfast, Edinburgh and Cardiff.

[Susan Elan Jones (Clwyd South) (Lab)]

Does my hon. Friend agree that in Wales devolution actually came in two tranches—in 1997, but also in 2011, when Wales voted overwhelmingly for full law-making powers—and that any rolling back of those powers would be simply unacceptable and anti-Welsh in the extreme?

[Jenny Chapman]

I would never wish to be accused of being anti-Welsh.

[Vernon Coaker (Gedling) (Lab)]

My hon. Friend is talking about the UK framework and the devolved Administrations. Would she care to comment on the quite astonishing scenes we have witnessed today? It is apparent that the Government have not spoken to the Northern Ireland First Minister about what should happen with respect to any deal. If we are to have special arrangements—or special alignment—between Northern Ireland and the rest of Ireland, what is wrong with giving the whole UK that special alignment? It is called all of us staying in the customs union.

[Jenny Chapman]

My hon. Friend is highlighting the alarm with which we are witnessing the statements coming out today—the confusion, the briefing, the counter-briefing—and with which we contemplate the destabilisation, particularly in Northern Ireland, that could result. We are deeply concerned about it. I will resist making any specific comment until we have a much clearer picture of the situation, but I am sure that every Member will want to ensure that the negotiations proceed this week and that there is a clearer outcome. The Prime Minister has asked for that to happen at the end of the week. We are expecting a full statement tomorrow, and we look forward to it. I am sure that some very serious questions will be asked of the Prime Minister tomorrow about the conduct of the negotiations.

[Chris Bryant (Rhondda) (Lab)]

Is there not a really important point that the Government seem to forget? When they are negotiating about a border, or no border, or about divergence from or convergence with a regulatory framework on the island of Ireland, they must speak to the First Minister of Wales as well, because the vast majority of the exports from Ireland into the rest of the European Union go through Wales. There is no point in coming up with a Bill that simply ignores the devolved Administrations.

[Jenny Chapman]

My hon. Friend is right to highlight the fact that the Government seem to have acted in a rather high-handed way with all the devolved Administrations on a matter that is so fundamental to the future of the citizens of this country.

[Hywel Williams (Arfon) (PC)]

I agree with the hon. Member for Rhondda (Chris Bryant). The other border between the United Kingdom and Ireland is the one that passes through Holyhead and Fishguard. When I asked the Secretary of State for Exiting the European Union, in the Select Committee, what consideration he had given to the position in Holyhead in particular—given the chaotic road across the island, the two insubstantial bridges, and the extra traffic from the proposed Wylfa B power station—his answer he gave was very clear: “None.”

[Jenny Chapman]

That is shocking. I am sure that the hon. Gentleman and other colleagues from Wales will continue to make the point as the debate proceeds. Needless to say, the Government’s attitude has been most concerning to me and to First Ministers, because it suggests that they are not interested in the needs and ambitions of the people of Scotland, Wales and Northern Ireland. That approach is regrettable, but it is not too late to change it.

[Stephen Doughty]

My hon. Friend is being very generous in giving way. Just last week, senior border immigration officials told the Home Affairs Committee that the implications for the Welsh ports of Holyhead, Fishguard and Pembroke, which other Members have mentioned, are very serious in practical terms unless we remain in the customs union, for instance. That underlines the point that my hon. Friend is making about proper frameworks, the Joint Ministerial Committee and so on, and the points made in the new clauses and amendments.

[Jenny Chapman]

I could not agree more.

[Joanna Cherry (Edinburgh South West) (SNP)]

The hon. Lady is making a persuasive speech. She mentioned the renowned Scottish historian Sir Tom Devine. He, of course, has made the journey from being a supporter of devolution to being a supporter of independence. Does the hon. Lady agree that if the Bill is allowed to drive a coach and horses through the current devolution settlement, a great many more Scots are likely to follow Sir Tom Devine by becoming supporters of independence rather than devolution?

[Jenny Chapman]

I sincerely hope that that will not be the outcome, but I have to admire the hon. and learned Lady’s ability to spot an opportunity and take it.

The Government have never argued that these powers need to be in London or that they intend to hold on to them permanently. Rather, it seems that they feel that tackling the undoubted complexities of considering how to make new arrangements with the devolved Administrations post Brexit belongs in the “too difficult” pile—something to be put off until there is more time and there are fewer distractions. However, there are no time limits on when the Government will cease to hoard the powers. While the hard-line Brexiteers on the Back Benches are promised a time and date—to the very nanosecond—for when they will see powers returned from Brussels, the nations of our Union are told to wait indefinitely. The people of Wales, Scotland and Northern Ireland deserve better from the Government.

The Government agree with Labour and the devolved Administrations that frameworks are needed—I think—and new clause 64 assists them by outlining how that can be achieved. The presumption should be that powers remain devolved as is the case now, and that UK frameworks are created to co-ordinate policy in some areas through negotiation with the devolved Administrations. To do anything else would turn back the clock on devolution—impossible—and cause untold damage to important relationships between Parliaments.

As well as having the motivation and attention to address this issue, the Government need to trust the devolved Administrations. That is why our proposal makes explicit the obligations on each Government and the nature of the frameworks needed. So far, the Government have not exactly shone in their endeavour to develop a UK-wide approach to Brexit, so new clause 65 helps by putting the Joint Ministerial Committee on a statutory footing.

It is important to reflect on the absence of representation from Northern Ireland on the JMC. The suspension of the Executive is deeply regrettable, and permits the neglect of the needs, concerns, ambitions and hopes of the people of Northern Ireland. Their voices must not go unheard at this most critical of moments, but need to be amplified, as it is they who have the most to lose from a chaotic departure from the EU.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am following the hon. Lady’s speech carefully. I am also looking very carefully at her new clause, but I do not see how it would resolve the question of what would happen if we set up joint structures and there was disagreement about how they will work. It can, of course, be argued that the Parliament of the United Kingdom is ultimately sovereign, so I think that it is a matter of law that if there is a disagreement, the logjam would ultimately be resolved by this Parliament and the Government in Whitehall having primacy. The question the hon. Lady has to answer is whether the structure she is putting forward would be workable in practice, or if it would just lead to conflict.

[Jenny Chapman]

The new clause is not intended to cause conflict—we already have a certain degree of conflict between the Administrations—but, rather, to remove that conflict, and to provide a mechanism by which issues can be resolved. Hearteningly, the JMC seems to have started to function rather better than it did when we last went around this particular issue. It has issued statements that explain how it wants these frameworks to be established, so it does not seem to be too much of a leap to write that into the Bill.

The right hon. and learned Gentleman will probably remember our attempt to put the JMC on a statutory footing when we considered the article 50 Bill, but this time the Brexit negotiations are upon us. The Government have lost their majority since our last attempt, so I encourage Ministers to take a more conciliatory approach this time. New clauses 64 and 65 would force the Government to respect both the devolution of decisions, and those who are responsible for taking the decisions.

[Ian Murray]

Does my hon. Friend agree that the JMC should be producing communiqués that give the public and this House slightly more information? The communiqué published on 16 October merely stated the attendees and apologies, and concluded:

“Ministers noted the positive progress being made on consideration of common frameworks”.

Does my hon. Friend agree that we need slightly more information?

[Jenny Chapman]

I hope that Ministers are listening and taking note.

[Jonathan Edwards (Carmarthen East and Dinefwr) (PC)]

Do the Welsh First Minister, and indeed the Welsh Cabinet Secretary for these matters, agree with the wording of new clause 64? Given their public comments, I think they would find it very difficult to agree totally with its current drafting.

[Jenny Chapman]

My understanding is that the answer is yes. We have not worked alone on this—we have worked together with the devolved Administrations—so I am slightly surprised by that question. Perhaps the hon. Gentleman is angling for something. Is he trying to extract something from this that I am unaware of?

[Jonathan Edwards]

The plight of the First Minister has always been that new UK frameworks have to be made collaboratively in a partnership of equals. The new clause seems to suggest that this would be a matter determined by Westminster, in negotiation with the devolved Governments, but that is a totally different thing.

[Jenny Chapman]

The intention is that the frameworks would be achieved collaboratively. That is precisely what we are trying to achieve. It is, of course, a matter for the hon. Gentleman if he is trying to force a wedge between me and my hon. Friends and the First Minister, but I do not think he is going to be successful.

[Hilary Benn (Leeds Central) (Lab)]

On the point about conflict that was raised by the right hon. and learned Member for Beaconsfield (Mr Grieve), it seems to be the way in which the Bill has been structured that creates the conflict. The Government could have done this differently. They could have said, “You can have all the powers back and we will hold a veto.” The question is about getting agreement on the frameworks when they are necessary. The two new clauses to which my hon. Friend is speaking seem to me—and, I am sure, to many people—to set out a really practical way of bringing the two sides together to get those agreements. That is the route by which we will find a way through this problem.

--- Later in debate ---

[Jenny Chapman]

That is absolutely the approach that we have tried to take. We are trying to be practical, realistic and respectful, and to work collaboratively with the devolved Administrations.

[Pete Wishart (Perth and North Perthshire) (SNP)]

Will the hon. Lady give way on that point?

[Jenny Chapman]

I believe that the hon. Gentleman is sincere that his intervention will be on that point.

[Pete Wishart]

Perhaps the hon. Lady requires a note from elsewhere to say that this is not one of the amendments brought forward by the Scottish Government and the Welsh Government. In fact, the new clause says something entirely different. It states that “Ministers of the Crown” would “create UK-wide frameworks”. The Welsh and Scottish Governments want this to be a combined process that involves all the parties.

[Jenny Chapman]

I understand what the hon. Gentleman is saying, but I think he is dancing on the head of a pin. We want the creation of the frameworks to be done collaboratively by the devolved Administrations and the Government.

[Joanna Cherry]

Will the hon. Lady give way?

[Jenny Chapman]

I have already given way quite a lot. If the hon. and learned Lady does not mind, I am going to crack on now. She will have a chance to make her own speech, and I look forward to listening to it.

[Mr David Jones (Clwyd West) (Con)]

rose—

[Jenny Chapman]

I will give way one last time, to the former Minister.

[Mr Jones]

Pursuing the same point, does the hon. Lady not accept that new clause 64(3), having provided that there should be no new frameworks created without the agreement of the devolved Administrations, would be a recipe for chaos, on the basis that if there were no such agreement, it would be impossible to create the frameworks that she seems to acknowledge as so desirable?

[Jenny Chapman]

The Joint Ministerial Committee said that it wanted frameworks to be created in this way, I think at the time when the right hon. Gentleman was a Minister, so I really do not understand what his objection is today.

We need look no further than Wales to learn of the practical benefits of devolution. It is right that Cardiff should decide the best way to support farmers in Wales, within an agreed framework but according to their needs and priorities. Jobs Growth Wales has so far supported the employment of 17,000 young people using European funding. That decision would not have been possible if the arrangements proposed by the Government had been in place at the time. When I was first elected, the Tories and the Lib Dems scrapped the almost identical future jobs fund in 2010. Such decisions were devolved for good reason, and we will support the devolved Administrations in keeping them. Amendments 42 and 337, alongside new clause 64, would allow the Government until the end of the transitional arrangements to create UK frameworks.

I want to make it clear to the Minister that in tabling these new clauses and amendments, Labour is attempting to assist the Government by enabling the devolved Administrations to be engaged in decisions that have a direct impact on their people. If the Government accept our criticisms and proposed improvements, Ministers will find that they have a less turbulent time in the months ahead. Do the Government really think that it is wise to pass a Bill to which the devolved Administrations are so hostile? Ministers need to focus on negotiating the best possible deal for all the people of the UK, not on embroiling themselves in constitutional rows with Edinburgh and Cardiff.

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[Stephen Kerr]

Yes, and that is no surprise, because I sit on the Conservative side—the Government side—of the House of Commons. I believe and trust in the Government. I believe that Ministers will deliver on a settlement. I do not know why that is such a surprise to Opposition Members.

[Jenny Chapman]

The hon. Gentleman has told his Front-Bench colleagues that he will vote with the Government this evening but, should the Bill return unamended in this House, what would be his inclination on Third Reading?

[Stephen Kerr]

In common with other colleagues who have spoken today, I expect there to be amendments, and when those amendments come to the House in due course, it will be because everyone involved in this process, including the UK Government and the devolved Administrations—the Scottish Government are my immediate interest—will have put on an adult head because there is so much at stake for our country. I happen to think that one of the most positive contributing factors to the change of climate has been the Scottish Affairs Committee’s excellent report, which is a step in the right direction.

--- Later in debate ---

[Chris Skidmore]

We have been working closely with the devolved Administrations on these questions and will continue to do so, progressing the discussions and the necessary analysis of where common approaches are and are not needed, through ongoing bilateral and multilateral discussions between Ministers and officials.

In an excellent speech, my right hon. Friend the Member for Clwyd West (Mr Jones) highlighted the important progress that was made at the recent JMC (EN) meeting on 16 October, when the UK Government, the Scottish Government and the Welsh Government agreed to a set of principles to identify where we will need frameworks. Given the myth busting that needs to take place around the JMC (EN) process and given how open and transparent it already is, it may be appropriate to quote from a communiqué regarding an agreement by all the devolved Governments and the First Secretary of State on the definition and principles of the common frameworks. It states:

“As the UK leaves the European Union, the Government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate.”

The communiqué then goes on to set out some important principles for where common frameworks

“will be established where they are necessary in order to: enable the functioning of the UK internal market, while acknowledging policy divergence; ensure compliance with international obligations”.

[Jenny Chapman]

I may be able to save the Minister a job here. New clause 64 includes what he is reading out, word for word. Given that he supports the principles, is he not inclined to accept new clause 64?

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[John Mc Nally (Falkirk) (SNP)]

I rise to support the amendments in the name of my right hon. and hon. Friends and to oppose clause 11. I have sat here since 3 o’clock, and I have been to the toilet once, nearly equalling Mr Speaker’s record, so he is obviously having an influence on my ability to hold in my water.

As a member of the Environmental Audit Committee, I want to discuss my concerns about clause 11 and Scotland’s environmental laws. Since Scotland gained a devolved Parliament, the political conversation on the divergence of policies has in many cases become diametrically opposite to the policies here in Westminster. I have always believed that, if someone wants to change the world, they have to get busy in their own little corner. The Scottish Government and the Scottish Parliament have done and are doing just that, and they are backed by the people of Scotland in trying to come up with more policies to improve social wellbeing and social mobility. A better community means that a better community spirit can be established, but if the present Tory Government stand in the way of our targets, aims and aspirations, do not think for one minute that the Scottish people will take that lying down—they will not.

The Scottish Government have steadily improved their environmental policies, which have been praised by a variety of academics and recognised by various politicians from other countries, who have commented positively on Scotland’s aims and ambitions. During a trip by the Environmental Audit Committee to Washington earlier this year, the president of one of the universities that we visited could not speak highly enough of the Scottish Government and all their chemical policies, and I want the Labour party and the Conservative party to remember that. The Scottish Government have provided certainty of policy on environmental issues and that policy sits at the top of the tree. Investors like that. Investors who believe in corporate responsibility like that. Investors in people and businesses who see the positive social impact that good, sustainable policies deliver to all parts of the community like that. Expert commentators like that. Most importantly, our people—the Scottish people—like that, and it is the right thing to do. That is why it is so important that we as a country protect our carefully thought-out policies—our devolved policies.

I want to give some examples of comments about our policies that have been given to the Environmental Audit Committee. Professor Holgate, who is an expert on the health effects of poor air quality, said:

“Scotland is taking a lead in this area… Scotland has been able to… keep the relationships between the public, health and local authorities intact. In this country”—

England—

“they have drifted apart”.

He praised the Scottish Government’s approach to tackling poor air quality and their adoption of World Health Organisation guidelines on fine particulates into law—the first country in Europe to do so. He challenged England to raise the bar—I like that. Do we need to protect these policies? Yes, we do.

We simply must not get soil health wrong. Sir Peter Melchett and David Thompson attended our Committee. During their evidence, David Thompson said:

“The Scottish Government…have a statutory requirement to produce a land use strategy under their Climate Change Act, which is not the case for the rest of the country.”

Sir Peter Melchett said that the Scottish Government were looking at the science of soil protection 15 years ago and that the science is linking more closely in Scotland than he has

“ever seen happen in England.”

I like that. Sir Peter Melchett and David Thompson are educated, knowledgeable people. Do we need to protect that policy? Yes, we do.

I will now get a wee bit into the crux of the matter, the re-reservation of powers and the possible threat to Scotland’s environment. Emma Barton, the Royal Yachting Association’s planning and environmental manager, and Professor Carolyn Roberts, vice-president of the Institution of Environmental Sciences, both appeared before the Environmental Audit Committee. When I asked them about marine protection zones, Emma Barton said:

“As far as I am concerned we have had a…positive experience in Scotland… I don’t have any particular concerns…in Scotland.”

When I asked Professor Roberts about the possible post-Brexit danger that devolved Administrations would be forced to take things they do not want, such as genetically modified crops or fracking, her answer was yes. Again, I pressed her on whether these powers could be taken back, and she said, yes, of course they could.

The complexity of working out exactly what the devolved Administrations can and cannot do will mean that every legal decision they make in areas touched by European legislation will be open to challenge at UK level. Effectively, this could turn them into paper Parliaments whose decisions could be overturned by anyone with the resources to launch a case at the UK Supreme Court. The Scottish Government agree that common frameworks are needed to guide many legislative areas across the UK post-Brexit, but the frameworks need to be agreed, not imposed.

My last quote is from the Secretary of State for Environment, Food and Rural Affairs, who was sitting in the Chamber earlier. He has said that he had his own “Damascus moment” on environmental issues, which I welcome, but he raised eyebrows at the EAC in November with his answers on devolved matters. He promised to clarify his position, which he has done by way of a letter to the Committee. Or has he? The letter said:

“In particular, we will explore with the devolved administrations whether they wish to take a different or similar approach. We have been clear throughout that we respect the devolution settlements, that we expect more powers to be devolved and that no decisions which the devolved administrations currently make will be taken from them.”

Consider that. I repeat it:

“no decisions which the devolved administrations currently make will be taken from them.”

Post-Brexit, will the Government honour the Environment Secretary’s statement and make the temporary position permanent?

[Jenny Chapman]

After eight hours of debate, during which I lost count of the number of contributions, I do not think I heard a single speaker on either side say that there was not an issue with clause 11. The Minister seems to accept that it has some deficiency, yet after eight hours he will not say what he thinks it is or how he intends to remedy it. He has not seen fit to accept a single amendment or new clause put before him today, despite saying he welcomes reasonable, practical contributions. For that reason, I shall seek to put new clause 64 and amendment 42 to the vote.

Question put, That the clause be read a Second time.

European Union (Withdrawal) Bill

Baroness Chapman of Darlington Excerpts

Committee: 5th sitting: House of Commons
Wednesday 6th December 2017 Commons Chamber

[Jenny Chapman (Darlington) (Lab)]

I wish to speak to amendments 338, 346 and 347 in my name and the names of my hon. and right hon. Friends. I also wish to make it clear that my party and I would support new clause 70, should it be put to a vote. I was heartened by the intervention of the hon. Member for Stirling (Stephen Kerr), who said that he also supports the new clause.

As the hon. Member for North Down (Lady Hermon) argued so eloquently and persuasively, new clause 70 protects the Belfast principles throughout and beyond our departure from the European Union, just as Labour’s amendment 338 prevents delegated powers from being used in any way that would undermine the Good Friday agreement. I am grateful to my hon. Friend the Member for Pontypridd (Owen Smith) for his thoughtful guidance in devising amendment 338.

Too many—including, I suspect, many of my constituents—see the Good Friday agreement as an event that took place almost 20 years ago, already consigned to the history books. The agreement was, and is, the result of years of work by too many committed souls to name each one. It is an agreement that is as moving to read now as it was then. Beautifully simple are the words that drew to an end the decades of brutality, misery and conflict that had befallen the island of Ireland and beyond for decades. None of us living on this side of the Irish sea can truly comprehend the opportunity for a new beginning for Northern Ireland that was made possible by the Good Friday agreement. The declaration of support for the agreement says it best:

“The tragedies of the past have left a deep and profoundly regrettable legacy of suffering. We must never forget those who have died or been injured, and their families. But we can best honour them through a fresh start, in which we firmly dedicate ourselves to the achievement of reconciliation, tolerance, and mutual trust, and to the protection and vindication of the human rights of all.”

To say that the Labour party is proud of its role in bringing the agreement into being does not convey sufficiently the time, political and emotional investment made by Tony Blair, Paul Murphy, Mo Mowlam, Jonathan Powell and countless others, by choice, in the process. Peace and security in Northern Ireland mattered to the Labour party then and it matters no less to us now. But it is important to say, too, that the work of John Major and many in this Chamber should be recognised, appreciated and acknowledged.

We have seen this week that all the challenges involved with implementing the UK’s decision to leave the European Union unite and are magnified in the context of Northern Ireland. The separation by sea from the rest of the UK and the joining by land of Northern Ireland to the Republic of Ireland quickly expose the weaknesses of any flippant attempt to provide a single line answer to the question of our future relationship with the EU.

Northern Ireland finds us out. It is the test by which any proposed deals can be said to succeed or to fail. Ruling out the customs union and a changed relationship with the single market before trade talks have even begun fails the Northern Ireland test. Why? Because of the potential reappearance of a hard border, which all parties say they do not wish to see. But we cannot wish away problems. If we have different tariff arrangements from the EU, we will need to collect tariffs from the EU, and the EU will need to collect tariffs from us. If we have different product standards and regulations, goods will need to be inspected to see if they are allowed in each other’s markets, particularly agricultural produce. In Norway and Sweden, that means a hard border. In America and Canada, that also means a hard border. Ambition is not enough to prevent it from meaning a hard border on the island of Ireland too.

[Dr Murrison]

To my knowledge, the United Kingdom Government are not proposing to erect tariff barriers, and they do not want to have regulation. Therefore, there would be no need for a hard border in the way in which the hon. Lady describes. If the European Union wishes to collect tariffs or erect regulatory barriers, the European Union will have to erect a hard border, but the UK Government surely cannot be answerable for that.

[Jenny Chapman]

I struggle to see how the originator of the border—who would erect it—is of any consequence to the people of Northern Ireland. A border is a border and it needs to be avoided at all costs.

[Ian Murray (Edinburgh South) (Lab)]

It is quite clear that the proponents of Scotland remaining in the UK during the 2014 Scottish independence referendum were right to argue that taking Scotland out of the UK single market would mean the erection of a hard border at Berwick. Given what we have just heard from the hon. Member for South West Wiltshire (Dr Murrison), does my hon. Friend think that the situation would be any different in the context of Northern Ireland?

[Jenny Chapman]

As earlier contributors have made clear, this issue is the one that finds out the fantasists from the realists. If the Government have the ambition of avoiding a hard border in Northern Ireland, they need to explain exactly how they intend to achieve that.

[Stephen Kerr]

Is not the hon. Lady putting the cart before the horse? The next phase of the negotiations will determine the future relationship between the EU and the UK. Is not she presuming an outcome that very few people would actually be in favour of?

[Jenny Chapman]

I am just making it very clear to the Government and all other observers that this matter is not something on which the Labour party is prepared to compromise. That point may need to be made again as we proceed, but it absolutely ought to be made now too.

[Anna Soubry]

Perhaps the hon. Lady can help us. Does she agree that it is absolutely agreed by everybody—the EU, Ireland, Northern Ireland and everybody here—that we do not want a hard border, and that the Government have accepted that there will be a hard border unless we get a proper deal, which is why they conceded that point and offered up solutions in their White Paper? Would she further agree that the difficulty is that the solutions that have been offered up are unworkable unless the Prime Minister’s excellent idea is put across the whole United Kingdom? It is a great idea, but it should not apply only to Northern Ireland because we are a Union.

--- Later in debate ---

[Jenny Chapman]

I agree with the right hon. Lady, and she can probably guess that I will be making the point later in my speech that we need a solution that works for the whole United Kingdom.

The next issue is north-south co-operation. The Committee will know that strand 2 of the Good Friday agreement sets out a framework under which the Administrations in Belfast and Dublin can establish some common policies across the island of Ireland. I am sorry, Mr Streeter; I have missed out an important section of my speech. I will just go back and ensure that I do not omit any important issues. This is the peril of taking too many interventions.

The point I wanted to make is that we cannot simply wish away problems, that if we have different tariff arrangements from the EU, we will need to collect tariffs from the EU and the EU will need to collect tariffs from us, and that the Government’s ambition is not enough to prevent the reintroduction of a hard border on the island of Ireland. Therefore, the north-south co-operation that has been established is incredibly important, and the United Kingdom has a solemn commitment to support this co-operation.

From strand 2, the island of Ireland has the six north-south implementation bodies, and the co-operative work of the North South Ministerial Council. The European Commission reportedly estimates that there are 142 areas of north-south co-operation that are affected by EU rules and regulations. The Government may quibble with that number, but there can be no doubt that common EU rules and regulations facilitate co-operation in areas such as the environment, health, agriculture, energy, higher education and telecommunications.

It was always envisaged by the parties to the peace process that EU rules and regulations would help to facilitate north-south co-operation. The Belfast agreement states that the North South Ministerial Council will

“consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework.”

As Britain leaves the EU, it falls to this generation of political leaders to face up to the challenges that Brexit poses to the Good Friday agreement and make good on the efforts of those who worked so hard to reach agreement in 1998. We must cherish and respect what was achieved almost 20 years ago.

We need to preserve not only the institutions that were set up in relation to strands 1, 2 and 3 of the Good Friday agreement, but human rights and equality, the principle of consent and citizenship rights. The understanding that it is for the people of Northern Ireland, and the people of Northern Ireland alone, to determine their future is the principle that underpins the Good Friday agreement and subsequent agreements. The UK Government and the Irish Government are co-guarantors of the agreement and together must ensure that that promise is kept.

[Ian Paisley (North Antrim) (DUP)]

Yes, the Irish Government and Her Majesty’s Government are co-guarantors, but does the hon. Lady agree that the Irish Government have acted in very bad faith by dismissing the views of a vast number of people in Northern Ireland on the issue of Brexit?

--- Later in debate ---

[Jenny Chapman]

No, I do not agree with that at all and I will not be tempted into some kind of debate about it. If the hon. Gentleman wants to make a speech to that effect, he is very welcome to do so, but I will not agree with him.

Those elements of the agreement matter not only because they were necessary to bring lasting peace, but because they have enabled the economic rebirth of Northern Ireland. Nothing harms the prospects of young people or businesses like uncertainty and instability. Northern Ireland benefits from natural beauty, the ingenuity, creativity and resilience of its people, and a shared determination to never return to the suffering of the past. As a non-partisan coalition of businesses put it, we must ensure that

“society in Northern Ireland does not become collateral damage in any Brexit discussions.”

The Northern Ireland Committee of the Irish Congress of Trade Unions, the Confederation of British Industry in Northern Ireland, the Northern Ireland Council for Voluntary Action and the Ulster Farmers Union got it right when they produced an agreed position on the Brexit negotiations. They say that an “open frictionless border” must be maintained between Ireland and Northern Ireland, and between Great Britain and the island of Ireland. They say that

“Brexit must not be used as a pretext to dismantle hard won workers’ rights or to drive down employment standards”.

On this and on many other issues, the Labour party is as one with the people of Northern Ireland. There must be no hard border, the preservation of the common travel area between Ireland and the UK, no undermining of the Good Friday agreement, and full involvement of workers’ representatives, business and the community and voluntary sectors in articulating the concerns and protecting the interests of all citizens of Northern Ireland.

Indeed, everybody sensible who examines this issue in any depth soon reaches the conclusion that the Government must do what they have as yet failed to do and answer the question of how they plan to achieve their objective of no physical infrastructure and no customs border, as outlined in their position paper earlier this year. But answer it they must, because a hardening of the border will undoubtedly harm business and the economy. I was left in no doubt about that when I met farmers and business leaders in Northern Ireland recently. It will also harm the everyday lives of those who frequently cross the border for social, cultural, leisure, educational or health reasons. Whether it is because of the outstanding work that has been done by CAWT—co-operation and working together—in recent years to make sure that the border is not a barrier to accessing healthcare or the thriving agri-food trade that makes up 33% of north-south trade, avoiding a hard border must be our ambition.

If we are to have non-negotiable issues, the avoidance of a hard border in Northern Ireland should be the thickest and most indelible of red lines. As the Brexit Select Committee said in its report:

“We also recognise the unique challenges posed by the need to preserve the peace settlement in Northern Ireland, including issues that go far beyond trade and customs.”

Everybody knows that this is not just about moving butter; it is about daily life and identity for thousands of people. The Select Committee goes on to ask: how will the Government avoid a hard border if no deal is reached by 29 March 2019?

Continued progress in Northern Ireland goes hand in hand with prosperity and stability. The Good Friday agreement and subsequent agreements have provided certainty about the continuation of an approach to the future of Northern Ireland that is shared between the British and Irish Governments and the people of Northern Ireland. Putting a commitment to the agreement on the face of the Bill and preventing Ministers from legislating in any way that is contrary to the agreement would provide some of the clarity, certainty and reassurance that the businesses and citizens of Northern Ireland say they need.

Let us pause to reflect on the heart of the issue that the Good Friday agreement settled: the violence between communities and traditions that raged for generations and that took and scarred so many lives in Northern Ireland. Today, the people of Northern Ireland, so many of whom were affected by the troubles, will be watching, waiting and hoping that the Government can offer a cast-iron guarantee that the Good Friday agreement will be protected and preserved in every sense. There has been much talk of red lines as we have debated Brexit since the vote to leave. Maintaining our commitment to the Good Friday agreement and guaranteeing that Ministers cannot legislate incompatibly with it should be a red line for every last one of us in this Parliament.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Robin Walker)]

It is a pleasure to follow the hon. Member for Darlington (Jenny Chapman) and I echo many of the sentiments she has voiced from the Dispatch Box.

I have reordered my speech so that I can turn quickly to the new clause tabled by the hon. Member for North Down (Lady Hermon) and to the importance of the Belfast/Good Friday agreement. First, I will speak briefly to clause 10 stand part. As those who have studied the Bill will recognise, clause 10 is very short. Schedule 2, which relates to it, is rather more complex and we have a huge number of amendments to schedule 2. I therefore ask whether interventions on those various amendments can wait until we have dealt with the important issue of the Belfast/Good Friday agreement.

Clause 10 and schedule 2 are straightforward but essential. They provide the devolved Administrations with the powers they need to prepare our statute book for leaving the EU by dealing with deficiencies in retained EU law, ensuring ongoing compliance with international obligations and implementing the withdrawal agreement. As we set out in the White Paper, the task of preparing our statute book for exit is one that we share with the devolved Administrations. The law that will be preserved under the Bill has effect in areas that are devolved, as well as those that are not. We will leave the EU as one United Kingdom, but devolution is a vital part of that United Kingdom, and it is right that ensuring that there is certainty and continuity should be a shared and collective endeavour in which every Parliament and Assembly plays its part.

It is absolutely right, therefore, that we equip the devolved Administrations with the powers they need to correct the laws for which they are responsible, just as it is right for the UK Government to have powers to correct those laws that affect the UK as a whole. It is important, as we have, to set the parameters for those powers. We believe that we have achieved the right balance by focusing on the specific aims of the powers and by applying safeguards. That will ensure, for instance, that they are not used in ways that might disrupt the ongoing EU negotiations or the workings of our internal market. Today is an opportunity for the Committee to examine how we have struck that balance, and I will continue to listen with great interest to the views of Members across the Committee.

I am grateful for the contributions that have been made by committees in the devolved legislatures to the debate that we are having today. I am also grateful to those who gave evidence to those committees. These are complex matters and I welcome their engagement and the attention that these issues have been given. We will consider carefully all the evidence that has been put forward by those committees in today’s debate.

We have heard a huge amount in this debate about the importance of the Belfast agreement. I say to the hon. Member for North Down that we appreciate enormously the attention and work she has put into the new clause. Her new clause seeks to clarify that any Ministers using the powers in the Bill would have to have regard to, and abide by, the Belfast agreement. We absolutely recognise the importance of the issue that she raises. I think I can safely say that her opening speech was one of the most powerful evocations of the importance of that agreement. I pay tribute to her for the courage and clarity of her remarks.

--- Later in debate ---

[Mr Walker]

The Good Friday/Belfast agreement is and will continue to be secure.

I want to move on, and will turn to amendment 89, tabled by the hon. Member for Arfon (Hywel Williams), along with amendments 313 to 316, tabled by the hon. Member for Aberavon (Stephen Kinnock). These amendments would prevent UK Ministers from being able to use powers in the Bill in areas of otherwise devolved competence. Additionally, the hon. Member for North East Fife (Stephen Gethins), whom we have heard from today, has tabled amendments 161 to 163, which would require the consent of devolved Administrations for UK Ministers to exercise their powers in devolved areas.

I would like to take this opportunity to stress a simple but important fact: the concurrent powers in the Bill do not undermine the devolution settlement. Rather they give the UK Government and devolved Administrations the tools required to respond to the shared challenge of ensuring the operability of our statute book in a collaborative way. This reflects current practice. Concurrent functions have always been a normal part of our devolution arrangements and they are an important tool in ensuring that we can work together in the most efficient way. Take, for instance, new schedule 3A to the Government of Wales Act 2006, which lists no fewer than 34 laws containing concurrent functions for UK and Welsh Ministers, including powers to make subordinate legislation. We should not forget that section 2(2) of the European Communities Act 1972 is concurrent and is routinely used to make a single set of regulations to implement directives relating to devolved matters, such as the Marine Strategy Regulations 2010. Removing the concurrent tool would remove the vital flexibility from which we and the devolved Administrations already benefit in preparing our statute book. Such flexibility and greater efficiency will be crucial if we are to achieve the considerable task ahead of having a complete and functioning statute book on exit day.

Amendments 161 to 163, tabled by the hon. Member for North East Fife, would add to the process additional layers that have not previously been needed for equivalent powers by requiring consent from devolved Ministers. This might render the Government and the devolved Administrations unable to ready the statute book for exit day, and they therefore threaten the legal certainty that the Bill is meant to deliver.

Let me remind Members on both sides of the Committee that the Government have already committed that we will not normally legislate to amend EU-derived domestic law relating to devolved matters using any of the powers in the Bill without the agreement of the devolved Administrations. The powers build on the existing successful ways of working between the UK Government and the devolved Administrations, and the Government have committed to this ongoing collaborative working. I therefore urge those hon. Members not to press their amendments.

I now turn to amendments 158, 159, 318, 320 and 321, tabled by the hon. Members for Cardiff South and Penarth (Stephen Doughty) and for Aberavon. Taken together, the amendments would prevent amendment of the devolution statutes using the powers in clauses 7 to 9 and 17. In addition, amendment 160, in the name of the hon. Member for North East Fife, would require the consent of Scottish or Welsh Ministers if the Scotland Act 1998 or the Government of Wales Act 2006 were amended using the power in clause 9.

I want to start by saying that I have listened to and I am grateful for the debate we have already had on these amendments both in this Parliament and in Committees in other Parliaments. The Committee is right to pay careful attention to any changes to the devolution settlements, so I thank the hon. Members who have tabled these amendments and the Committees of the devolved legislatures that have drafted some of them for drawing attention to these issues.

A number of references in the provisions of the devolution statutes will not make sense once we leave the EU and will need correcting to ensure our statute book continues to function. We recognise the standing of these Acts, and for this reason we have corrected as many deficiencies as possible in the Bill—in part 2 of schedule 3. As Members will no doubt have noticed, these corrections are technical and I stress that they are devolution-neutral. They do not substantively change the boundaries of competence; nor will any of the corrections that are still to be made.

I want to reassure the Committee that we intend to correct the remaining deficiencies by working collaboratively and transparently with the devolved Administrations. Where possible, this will include correcting deficiencies using the existing powers such Acts already contain for amending the reservation schedules. This process with the devolved Administrations is already under way.

Specifically on the power to implement the withdrawal agreement—the topic of amendment 320, in the name of the hon. Member for Aberavon—it can be used to modify the devolution statutes only where it is appropriate to implement the agreement that will result from our negotiations with the EU. It cannot be used to modify them in any other way, and it simply is not true that any UK Minister can make any change they like to the devolution settlements. I hope I have reassured the Committee that the Government do understand that concern, but the amendment does not support our aim of a smooth and orderly exit.

Similarly, amendments 159 and 319 seek to restrict the use of the international obligations power to modify the Scotland Act or the Government of Wales Act. I want to be clear that these powers cannot be used to unpick or substantively change the devolution settlements. As I am sure the Committee will recognise, it is quite normal to use delegated powers in such a way. They have previously been used to amend the devolution statutes to ensure that our laws reflect the most accurate position in law, and ultimately to ensure that we fulfil our international obligations.

[Jenny Chapman]

I am slightly concerned that the Minister will sit down before he has had a chance to make any comment on amendment 338, in my name and those of my right hon. and hon. Friends, which would prevent Ministers from legislating in any way incompatible with the Good Friday agreement. I am sorry to refer him back to that, but I am concerned that he has not yet said anything about this amendment.

[Mr Walker]

I apologise to the hon. Lady. I think I mentioned that amendment in the run-up to addressing the detail of new clause 70 in the name of the hon. Member for North Down, but let me say that Ministers will not and cannot legislate incompatibly with the Good Friday agreement. We are bound by that agreement, and I have been very clear that this Government remain absolutely committed to the Good Friday agreement and have already put our obligations under it at the heart of our commitments.

On amendment 160 in the name of the hon. Member for North East Fife, I want to comment on the fact that such powers have previously been used, because it is important to recognise that this issue has already been addressed. For instance, the Treaty of Lisbon (Changes in Terminology) Order 2011, which was made under section 2(2) of the European Communities Act, amended the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 to give effect to new terminology relating to the European Union. Leaving the EU will require changes of a similar technical nature across the settlements, and that is what the powers enable.

--- Later in debate ---

[Conor McGinn]

I am an MP from Northern Ireland, but not a Northern Ireland MP, which makes speaking in debates such as this one rather peculiar, because everyone from Northern Ireland has a background or perceived affiliation. I find, when I say something that nationalists agree with, that they say, “Well, he hasn’t forgotten where he has come from.” When I say something with which they disagree, they say, “He should be ashamed of himself, given where he has come from.” Similarly with Unionists, when I say something with which they agree, they say, “Fair play to him, given where he is from.” When I say something with which they disagree, they say, “Well, what would you expect?” I have a knack of annoying everyone, which I hope to continue in the two minutes available to me.

I want to make a couple of quick substantive points, then say something about the Good Friday agreement. First, the only people seeking to change the border, or who have proposed a fundamental change to the border, are those who propose that we leave the single market and the customs union. It was the UK Government who fundamentally altered the nature of the border when they suggested that, not the Irish Government. The principle of consent is firmly enshrined: Northern Ireland will remain part of the United Kingdom until the majority of the people there decide otherwise. Notwithstanding that, there is a unique position, because people born in Northern Ireland have a right to Irish citizenship by virtue of their birth there. My constituents in St Helens do not have a right to be Irish because they are born in St Helens, nor do people in Manchester, Birmingham, Glasgow or Cardiff.

[Jenny Chapman]

I thank my hon. Friend for giving way at this late stage. Like him, I am deeply disappointed by the Government’s inadequate response to arguments made today to protect the Good Friday agreement. I am also disappointed that they appear to be prepared to risk a vote that could be perceived as challenging bipartisan support for the agreement, but we are not prepared to do that, so we will not seek to divide the Committee. I thought my hon. Friend should know that before he continues.

[Conor McGinn]

I thank my hon. Friend for that; the position is very strong and very clear.

The legacy of the peace process is not a Labour legacy; it is a legacy shared between us all. I hope that the Conservative party will reflect on that in these debates, and I am disappointed that the Government have not accepted the new clause today. It is disingenuous to say that the European Union is not mentioned in the Good Friday agreement. Its writ runs through the Good Friday agreement, which was predicated on the basis that we would both remain members of the European Union, and around strand 2, which is north-south co-operation, and strand 3, on east-west co-operation, it is mentioned specifically in terms of areas we can discuss, and there are shared competences.

I want also to remind the Committee that although we talk a lot about the referendum to leave the European Union and its result, the Good Friday agreement was passed by referendums on both parts of the island of Ireland by a majority of people exercising their democratic right. We need to respect that referendum as well as the referendum on the European Union.

The debate focuses primarily and largely on trade, tariff and regulatory alignment. The Good Friday agreement and the peace process are much more than that. I said in this House in my maiden speech that there was no contradiction in being British and Irish, or to having feelings of loyalty, affinity and affection for both countries. That is being tested by this process, but I stand by it. I plead with the Government: through this Brexit process, do not make people choose.

--- Later in debate ---

[Sir Oliver Letwin]

I do not think there is the slightest chance that a withdrawal agreement will be put before the House that does not specify, or enable one to calculate, an amount of money, because there is no indication that the EU would accept such a thing. Whether or not we should be paying such an amount is a separate matter. In any event, as my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) just said from a sedentary position, if that is a deficiency of a forthcoming money resolution, it is a deficiency shared by new clause 17, which also does not stipulate anything about an amount. One way or the other, I fear that the new clause is otiose. It has given an admirable opportunity for the hon. Gentleman to make an interesting speech, but that is its only virtue. The House should have nothing further to do with it.

[Jenny Chapman]

It is a real pleasure to be called to contribute. I wish to speak to new clause 80 and amendments 339 and 340 in my name and the names of my right hon. and hon. Friends.

New clause 80 would require a vote in the House on the financial settlement that the Government agree with the European Union. Further, it would require the House to be informed in its decision on that matter by reports from the Office for Budget Responsibility and the National Audit Office. Amendments 339 and 340 would prevent tax or fee-raising powers from being established via tertiary legislation and limit any fees that are levied by public bodies to the cost of the service that the fee is intended to cover.

I should start by referring Members to the third report of the House of Lords Delegated Powers and Regulatory Reform Committee from September, which examined the Bill before us today. The report draws our intention to the fact that the delegated powers memorandum notes that those powers would enable

“the creation of tax-like charges, which go beyond recovering the direct cost of the provision of a service to a specific firm or individual, including to allow for potential cross-subsidisation or to cover the wider functions and running costs of a public body.”

The report alerts Parliament to the danger of allowing organisations full-cost recovery of their services without parliamentary scrutiny as it could allow them to gold-plate the services that they offer. As the report says:

“A tax-like charge means a tax.”

And it

“should not be allowed in subordinate legislation. They are matters for Parliament, a principle central to the Bill of Rights 1688. Regulations under clauses 7 and 9 cannot impose or increase taxation.33 But regulations under Schedule 4 may.”

The report goes on to make the point that that means that Ministers can tax. They can

“confer powers on public authorities to tax and they can do so in tertiary legislation that has no parliamentary scrutiny whatsoever.”

New clause 80 also addresses this issue of a lack of parliamentary oversight. As we all know, the Government are in the process of attempting to conclude the first phase of negotiations with the European Union. Part of that process is agreeing a financial settlement, which reflects the obligations that the United Kingdom has incurred as a result of its membership of the European Union. Labour has always been clear that Britain should meet its obligations. We cannot seriously hope to make new agreements on the international stage if we are seen to go back on what we have already agreed. Britain is a far better, fairer and more reliable ally than that.

As the Chancellor said when he attended the Treasury Committee today:

“I find it inconceivable that we as a nation would be walking away from an obligation that we recognised as an obligation.”

He continued:

“That is just not a credible scenario. That’s not the kind of country we are and frankly it would not make us a credible partner for future international agreements.”

On that, we are agreed. But we have also been clear that the deal must be fair to the taxpayer. Already the Government are attempting to bypass the scrutiny that should take place in this Chamber. This money belongs to the UK taxpayer and they have a right to know how much, and for what they are paying. It is true that the public interest in discovering more about the financial settlements that the Government intend to make with the EU is great, and that there will inevitably and rightly be extensive media coverage. The details, some certain and some speculative, will be pored over by commentators. Estimates will be made and objections proffered on the basis—sometimes, I venture to say—of inaccurate or incomplete information. That is not a satisfactory way to proceed. The House must get a grip of this process and demand the ability to scrutinise and take a view on the deals reached.

Our new clause argues that this House should have a vote, and also that the vote should be properly informed. Being properly informed means that independent analysis by the OBR and the NAO must be provided to assist this House in its consideration of the deal. We are going to need that, because the financial settlement will not be straightforward, and unvarnished truths will be hard to come by. Crudely speaking, the Government will try to make the amount look as reasonable as possible and the EU will try to show that it has everything that it thinks it is due.

The Government will want to highlight estimates that show how payments will be less than half the €100 billion liability, once UK projects have been taken into account. As Alex Barker in the Financial Times put it last week:

“Ministers are banking on Treasury budget wizards making the exit price look as small as possible.”

The two sides in the negotiation could look at the same agreement and come up with net estimates that are quite different.

[Helen Goodman]

I am just puzzling over how the Government think this will work. Has my hon. Friend thought about this: it is highly likely that we will make not one big payment, but a number of payments over a period of time, which means that the payment could be spread into another Parliament? Given that no Parliament can bind its successor, how does she think that the Government can make this agreement?

[Jenny Chapman]

That is a very interesting point. As a fellow member of the Select Committee on Procedure for several years, I am not surprised that my hon. Friend has spotted this. I would be fascinated to hear what the Minister has to say about that when he gets to his feet later this evening.

Parliament ought to have the ability to debate, scrutinise and reach its own conclusion on this matter. If we do not, we will be the only people not tussling with it. This Parliament wants to do as the people said we should: take back control. The Chief Secretary to the Treasury said in response to an urgent question from my hon. Friend the Member for Nottingham East (Mr Leslie) that to give Parliament details about the settlement

“would not be in our national interest”—[Official Report, 29 November 2017; Vol. 632, c. 327.]

That is not good enough. She said that she will “update the House” when there is more to say, but we do not want to be updated; we want the ability to decide.

European Union (Withdrawal) Bill

Baroness Chapman of Darlington Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

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.

[Jenny Chapman (Darlington) (Lab)]

It is a pleasure to follow the hon. Member for Stirling (Stephen Kerr), and I can sense the torture he is putting himself through. The shadow Secretary of State for Scotland, my hon. Friend the Member for Kirkcaldy and Cowdenbeath (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.

[Mr Sweeney]

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.

[Jenny Chapman]

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—I will leave that to my SNP colleagues—because I understand how they must be feeling 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. The hon. Member for East Renfrewshire (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. 729-31.]

He was not alone. The hon. Member for West Aberdeenshire and Kincardine (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.]

The hon. Member for Stirling (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.

[Ross Thomson (Aberdeen South) (Con)]

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.