European Union (Withdrawal) Bill

Chris Skidmore Excerpts

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

[Ronnie Cowan (Inverclyde) (SNP)]

Thank you, Dame Rosie. I shall attempt to keep my remarks within the time limit handed down by the Chair, at least 20 minutes ago.

As a member of the Public Administration and Constitutional Affairs Committee, I have been in the privileged position of being able to talk, both formally and informally, with constitutional and political experts about many things, including clause 11. As part of the process of formulating our latest report, the Committee’s Chair, the hon. Member for Harwich and North Essex (Mr Jenkin), and I travelled to Edinburgh and took evidence from panels of experts over two days. It was an enlightening and informative experience.

Under clause 11, a potential 111 powers that could be devolved to Scotland will be held at Westminster until such time as the UK Parliament sees fit to devolve them. The UK Government’s stance is, “Trust us; we’ll do the right thing.” And trust them we have over the years: we trusted them to deliver the Calman report but they did not; we trusted them to deliver on the Smith commission but they did not; we looked to the Sewel convention and we saw right through it; and we listened to, and were influenced by, a vow that was not a vow.

In September 2014, the then Prime Minster David Cameron told us that we were a “family of nations”. We were told that Scotland could lead, not that the Government would attempt to put a lead on Scotland, but every amendment requested by SNP MPs, who were democratically elected to represent the citizens of Scotland, was voted down. When we voted to stay in the EU, our views were ignored. When we asked to sit at the table during the negotiations, we were snubbed. I can assure the Minister that the words “the cheque is in the post” and the promise that you will respect me in the morning will not work any more.

I am well aware of the cold, hard fact that the UK Government do not have to do anything, but Scotland is not a faithful hunting dog standing at its master’s heel, waiting on its orders. Scotland in the Union is a concept rooted in the past. The ties that bind us come from, in part, a shared history—a history of conflict and conquest—but the sun set on the empire a long time ago. It might come as a surprise to some, but 59 colonies have walked away from the empire and, as a new dawn rises, so does Scotland. We want a different future from the one set out for us, but Scotland cannot choose its own future when we have to seek permission to do so.

Clause 11 does not set out a timetable for transition. Professors Richard Rawlings and Alan Page have both raised concerns that clause 11 is described as a transition agreement, but that there is no provision for that in the Bill. Despite that, we are currently designing our Scotland. Civic Scotland, combined with academia and business, is already coming together to design the country we want to live in. Discussions in think-tanks and at public meetings about the Scotland we want to be are common occurrences. There is a growing awareness that Scotland, with the right powers, can reform our energy business, banking sector, and agriculture and fishing industries.

We could even negotiate our own trade deals, like Norway, Iceland and the Faroe Islands do. The Faroe Islands negotiate their own trade deals because the Danish Government respect and trust them. We could each define our own future and still be trading partners and valued neighbours, while continuing to help and support each other, but only if that is achieved through mutual respect for each other’s sovereignty. And there is the rub: clause 11 shows no respect or trust for Scotland or any of the devolved authorities.

Dr Tobias Lock, a senior lecturer at Edinburgh Law School, has said:

“The European Union (Withdrawal) Bill will result in a shift in balance between the powers Westminster has in practice and the powers Holyrood has in practice with Westminster’s powers being augmented and Holyrood's staying the same.”

That concern is shared by Professor Nicola McEwen, professor of territorial politics at the University of Edinburgh. She identifies that clause 11 is fundamentally a problem of trust. The UK Government do not trust the devolved Governments to refrain from using repatriated powers to create policy and regulatory divergence that might harm the UK’s internal market and create problems in trade negotiations. This, she argues, overlooks the considerable constitutional authority that the UK Parliament already retains over market regulation, trade, and the making and implementation of international treaties. For their part, the Scottish and Welsh Governments do not trust the commitment of the UK Government to devolve repatriated powers after Brexit and/or to agree and govern UK common frameworks on a genuinely co-operative basis. Once the existing imbalance has been augmented, when will it be realigned?

Scotland, if given the right powers, could negotiate with the European economic area and European Free Trade Association to seek what is best for Scotland but not detrimental to the rest of the UK. However, we are hamstrung by a UK Government who are scared of their own shadow, constantly looking over their shoulder and wondering from where the next challenge or crisis will emerge. We have a UK Government propped up by bluster and buffoonery.

Individuals may be protected by personal wealth that generates self-confidence and self-assurance, and supports a “devil may care” attitude—one that nudges us forward, assuring us that it will be all right on the night—but the vast majority of people in the UK are less well protected from the economic turmoil that lies ahead. They have concerns about jobs, pensions and visas. They have rightly turned to the UK Government time and again for reassurance, but their concerns are not being addressed. All that has been offered is a sickly mix of jingoistic imperialism. The Scottish Government wish to bring clarity and seek the powers to govern responsibly, but clause 11 does not provide that authority or opportunity. It must be amended forthwith, and the powers due to the Scottish Parliament—powers that will be best used by the Scottish Government, in the best interests of the citizens of Scotland—must be repatriated to the Scottish Parliament immediately after the UK leaves the European Union.

[The Parliamentary Secretary, Cabinet Office (Chris Skidmore)]

I rise to support clause 11 and schedule 3. Let me say at the outset how grateful I am to all Members for their contributions to the six-hour debate that we have had so far today, and for the thoughtful consideration that has been given to this part of the Bill. I assure the Committee that I shall listen carefully to, and take very seriously, all the views that are expressed on these issues.

The Government have been clear about the fact that the Bill is about continuity, certainty and control. That applies equally, and without exception, to people in businesses in all parts of the United Kingdom. Clause 11 is about delivering certainty while guaranteeing all the existing powers of the devolved institutions. The current devolution settlements reflect the UK’s membership of the EU, and on that basis, they provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law.

[Ian Murray]

I apologise to the Minister for interrupting him so early in his speech. Many members of his own party have said that clause 11 is deficient and requires amendment. Does he believe that, and, if so, how does he intend to amend it to make it less deficient?

[Chris Skidmore]

I will set out the Government’s position in due course during my speech. [Interruption.] The hon. Gentleman intervened within 30 seconds of the beginning of my speech, and he is not accepting the answer that I have barely been able to give. I hope he will appreciate that I have a speech about the amendments to get through. When it comes to the clause itself, however, we are interested in the views of all Members and all devolved Administrations, and, above all, we are seeking a legislative consent motion. We are determined to approach the clause with a view to consensus.

As I was saying, the current devolution settlements provide that devolved institutions cannot act or legislate in a way that is incompatible with EU law. That has provided common, overarching laws and approaches throughout the UK while we have been in the EU. Those common approaches and laws have meant that businesses, regardless of where they are based in the United Kingdom, can trade with each other in the knowledge that they share agreed standards.

[Stephen Doughty]

The Minister is making an important point about businesses being able to trade. Given the amendments that we have been discussing and the importance of consultation with the devolved Administrations, will the Minister tell me whether the proposals that were put forward in Brussels today on the Northern Ireland-Irish border were discussed with the First Ministers of Wales, Scotland or, indeed, Northern Ireland?

[Chris Skidmore]

It is not for me to comment, during a Committee stage, on the process of European negotiations. There is a time and a place for that. I am not going to get into a discussion with the hon. Gentleman about the process of EU negotiations. We must ensure that the Prime Minister has the opportunity to reach out to Brussels, but I am here to discuss clause 11 and schedule 3 and the amendments, and I hope that the hon. Gentleman will allow me to continue to do so.

I was talking about the common approaches that enable us to trade with each other in the knowledge that we share agreed standards. We have agreed approaches on how to manage our common resources, and the UK can enter into international agreements knowing that we, as a country, can meet our obligations. As we leave the EU, the simple question is about where we need to retain the common approaches in EU law and where we do not. In the immediate term, clause 11 and part 1 of schedule 3 create a mechanism for those common approaches to continue to apply throughout the UK after exit.

[Mr Chris Leslie (Nottingham East) (Lab/Co-op)]

The Minister speaks of common approaches across the EU. We have heard today about the possibility of an alignment between the Northern Irish arrangements and those of the Republic and the rest of the EU. How will we retain those common approaches if, for instance, the UK negotiates a new trade deal post-customs union, and we end up with circumstances in which that would, or would not, apply to Northern Ireland? How on earth can the Minister reconcile that with the offer that the Government have been talking about today?

[Chris Skidmore]

I note that the hon. Gentleman has just walked into the Chamber. He is welcome to make a speech later on setting out his own principles; I would listen to that very carefully. I am addressing clause 11 and schedule 3 to the Bill. There is a time and a place for the wider discussions he wants.

--- Later in debate ---

[Deidre Brock]

On the temporary nature of these proposals, why have the Government not chosen just to put in place a sunset clause? Why is no date indicated, because the lack of one creates an enormous amount of uncertainty for everyone?

[Chris Skidmore]

The issue around placing a sunset clause on this provision is that, in a way, it creates an artificial cliff edge. The sole purpose of clause 11 is to ensure that the UK statute book is complete on exit day. We want to ensure that we work towards common frameworks, and that we can ensure that, when we have that statute book prepared for exit day, we have common frameworks and non-common frameworks in place. Having a sunset clause creates an artificial cliff edge to work towards that date, whereas we might want to create some of those frameworks before that date, and there might need to be some corrections to the withdrawal agreement and the EU withdrawal agreement Bill that has been announced, and some deficiencies that need to be corrected. Having a sunset clause is therefore unhelpful for the purposes of this clause in itself.

Returning to the issue of the policy areas where EU law intersects with devolved competence, as I have said, common frameworks will not always be required, or can be achieved through non-legislative means like concordats, and in such cases clause 11 provides a mechanism to release decision-making powers from the temporary competence arrangement through the Order in Council procedure, giving new powers to the devolved Administrations.

[Pete Wishart]

I am listening carefully to the Minister’s speech, but I am not hearing much about addressing the concerns of the devolved Parliaments and Assemblies, which are clearly saying that what is being proposed drives a coach and horses through the devolution settlement. How on earth is the Minister going to take on board their real concerns about what this Bill does to devolution, not least through clause 11?

[Chris Skidmore]

I have listened for six hours to the concerns of Members, but outside this Chamber there is an entire process that I want to touch on later in my speech, and which I hope the hon. Gentleman will reflect upon. There might be hostility in this Chamber from those who say that the Government are somehow taking clause 11 and ripping up the devolution settlement, but that is hyperbole. Clause 11 is a temporary competence limit that is being applied simply by taking EU law and it becoming EU retained law.

[Mike Gapes]

Will the Minister give way?

[Chris Skidmore]

No, not at the moment.

There are no powers that the devolved Administrations currently have that they will be losing. We have therefore had tremendous engagement on the framework that we are delivering, and I will touch on that engagement shortly. In particular, in the JMC (EN) process there has been huge good will from the colleagues of the hon. Member for Perth and North Perthshire (Pete Wishart) in the Scottish Government, and his officials, above all, working tirelessly behind the scenes, trying to deliver on what we need to do.

[Chris Elmore]

The Minister uses the word “temporary”. How long is temporary, and why is that not specified in the Bill?

[Chris Skidmore]

The hon. Gentleman points to the word “temporary”, and I repeat that this is a temporary competence limit—[Interruption.] He wants to know how long temporary is. It is as long as it takes to ensure that we have a complete statute book that is in the interests of continuity, certainty and control for UK businesses. We want to ensure that we have time to be able to correct the statute book and ensure that this is done properly. To create an artificial time limit would be unhelpful to this process. As he knows, the First Minister of Wales is going forward with the JMC (EN) process. That engagement is taking place, and I will talk about that later in my speech. This means that when it comes to ensuring that we have the temporary competence limit on the face of the Bill, the Order in Council process gives new—

[Mike Gapes]

Will the Minister give way?

[Chris Skidmore]

No, I have given way a lot—[Interruption.] I am going to carry on with my speech; otherwise I will not get through it. Other Members want to speak, and although I could stand here and take up all the rest of the time, I think it would be inappropriate to do so.

The Order in Council procedure will provide an opportunity for those powers to be returned to the devolved Administrations. This highlights a well-established procedure for adapting the parameters of the devolved competence, which requires debate and approval in the UK Parliament and the relevant devolved legislatures. It is absolutely right that the devolved legislatures are able to debate and consider any additional areas of competence being released to them through this mechanism. Of course we acknowledge that the Scottish and Welsh Governments have taken a different view on the mechanism to provide the necessary certainty, but we are in agreement that common frameworks will be needed in some areas. In some cases, legislative frameworks might be required, and we hope to continue working closely with our counterparts in the devolved Administrations to establish exactly what those will look like.

[Ian C. Lucas]

I am puzzled. The Minister has made it clear that the Government’s intention is to maintain the current legislative situation, so far as the clause is concerned. Why then did he not seek agreement with the Welsh and Scottish Governments before he brought this legislation to the Chamber? Why did he not achieve a resolved position before coming to the Chamber with the Bill?

--- Later in debate ---

[Chris Skidmore]

The hon. Gentleman will be aware that the clock is ticking, and that we have a limited amount of time in which to ensure that our statute book is prepared for exit day. We are determined to do that, because we need that certainty, control and stability. Businesses need to know that the statute book will be complete on exit day.

We have had a tremendous amount of engagement with our Welsh and Scottish partners, and I am perfectly happy to place in the Library records of the meetings between the First Secretary of State and his counterparts so that Members can see the level of engagement involved. I think that they would be quite struck by the number of meetings that have taken place and the work that has gone on behind the scenes. Members might be hostile in the Chamber today, but their Welsh and Scottish counterparts are working constructively with the UK Government because they recognise that we need some serious politics here and that we need to ensure that we have certainty and control for businesses.

[Ian C. Lucas]

Will the Minister give way?

[Chris Skidmore]

No, only once for each person. I will give way to the hon. Member for Central Ayrshire (Dr Whitford).

[Dr Whitford]

Why will having a Brexit date give certainty and clarity, yet having a date on which the powers would move to the devolved Governments is considered unacceptable?

[Chris Skidmore]

We will be discussing the clause 10 powers to which the hon. Lady refers on a separate day—on the morning of day five. Clause 11 is about ensuring that the statute book is prepared for exit day. In a way, exit day provides that temporary limit. We know that we need to make changes to the common framework, but beyond that, we do not yet know what the negotiation period will look like when it comes to ensuring that we need an implementation period. That is why we cannot necessarily provide that certainty.

[Several hon. Members rose—]

[Chris Skidmore]

I will give way to the hon. Member for Ilford South (Mike Gapes) now.

[Mike Gapes]

I am grateful to the Minister for giving way. Clause 11(3) refers to the Northern Ireland Assembly. Is the position for Scotland and Wales the same in the Bill as it is for Northern Ireland, given that the Good Friday agreement is underpinned by an international treaty between two countries and that it explicitly mentions the European Union?

[Chris Skidmore]

We are moving on to some of the clause 10 issues around international obligations, but when it comes to schedule 3, which I had hoped to touch upon later in my speech, we are determined to ensure that we obtain legislative consent from all the relevant devolved Administrations. Although the Assembly is absent, we are already working with officials in Northern Ireland to ensure that their perspective is reflected, but we are determined to move forward as the United Kingdom, which includes Northern Ireland.

[Martin Whitfield]

Does the Minister envisage requesting the legislative consent motions before explaining what amendments the Government are going to make to the Bill?

[Chris Skidmore]

As I have stated, the Government’s intention is to seek legislative consent for the Bill from all the devolved Administrations, where possible. We have already seen legislative consent memorandums being tabled in Scotland and Wales, and we are determined to ensure that we work with all our devolved partners and with officials in Northern Ireland and that we legislate on behalf of the United Kingdom.

[Mr Leslie]

When?

[Chris Skidmore]

I am going to carry on with my speech. The hon. Gentleman has already intervened and now he decides to—[Interruption.]

[The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

Order. We cannot have sedentary interventions. If the Minister wants to give way, he will give way.

[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?

--- Later in debate ---

[Chris Skidmore]

The hon. Lady did not touch on the communiqué and seemed to push it to one side without acknowledging the importance of the process. When the JMC (EN) process is taking place, her new clause is unnecessary. I will touch on why it is unnecessary to legislate when we have all this work ongoing to provide flexibility for the devolved Administrations to draw up a communiqué exactly like this one.

To carry on with what I was saying, common frameworks will

“enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the UK.”

The frameworks will also

“respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore: be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent; maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules; lead to a significant increase in decision-making powers for the devolved administrations.”

In the absence of Northern Ireland Executive Ministers, the Northern Ireland civil service will continue to be part of these discussions. We are building on the positive and constructive joint working between our Administrations to continue to accelerate our progress on common approaches. For example, there is ongoing work between officials from the devolved Administrations and the UK Government on how policy areas intersect with the devolution settlement. There have been several deep dives into those policy areas, and the work will be presented at the next JMC (EN) on 12 December, where we hope to make further progress by assessing more of the detailed work that has been carried out.

[Angus Brendan MacNeil]

How does the UK Government’s approach to working together with the devolved Administrations differ from their approach to working together with, say, Dublin and the other members of the EU27? Is one not a meeting of equals and the other a meeting of master and underling?

[Chris Skidmore]

The work on the common frameworks that clause 11 addresses points to the fact that we are keenly working with the devolved Administrations on drawing up those frameworks. We have an absolute commitment to ensuring that we can look at the principles that were agreed between our Governments on 16 October and that explicitly recognise that frameworks will not be needed in many of the areas currently governed by EU law.

As we have said from the outset, the Bill starts a process that will lead to a significant increase in decision-making powers. That is not a power grab. We are ensuring that more powers go back to the devolved Administrations and legislatures.

[Wes Streeting (Ilford North) (Lab)]

The Minister talks about the constructive relationship with the devolved Administrations. Has he taken time to look at what they have said about the shambles today?

[Chris Skidmore]

A bit of a wasted intervention. I am here to talk about clause 11. I do not know whether the hon. Gentleman has read the clause, but he came in slightly late.

[Wes Streeting]

I came for your speech.

[Chris Skidmore]

The hon. Gentleman is very kind, but we are discussing the effect of clause 11 and schedule 3 —that is the purpose of Committee.

[Several hon. Members rose—]

[Chris Skidmore]

I have already given way.

We want to build momentum over the coming months in the continued bilateral and multilateral discussions between Ministers and officials. Let me be clear that the Government are the party committed to devolution. Our record shows that, and we will continue to press on with devolution. Working through these frameworks is part of that, but we also want to protect the benefits of our Union across the UK and across each of our constituent nations, benefiting us all.

[Ian Murray]

Will the Minister give way?

[Chris Skidmore]

No.

I am grateful to hon. Members for raising important points of detail on the ongoing framework process. They are right to acknowledge that work has been done today on agreeing the guiding principles for the future frameworks, and that the further analysis is the product of the ongoing engagement between officials and Ministers in the UK Government and the devolved Administrations. Of course, the outcomes of those discussions are important not just to Governments but, most crucially, to the people and businesses across the UK to whom the rules apply.

[Liz Kendall (Leicester West) (Lab)]

The Minister is talking about the impact on people in the UK. Under the Good Friday agreement, people in Northern Ireland can choose to be British or Irish, or both. Will that remain the case after Brexit? If so, seeing as Ireland remains a member of the EU, will people in Northern Ireland still be able to choose to be EU citizens?

[Chris Skidmore]

I do not disagree with what the hon. Lady says. It is important to note that, when it comes to the common frameworks procedure, the communiqué agreed on 16 October states:

“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement.”

By way of myth busting, it is not the case whatsoever that the Good Friday agreement will somehow be affected.

Clause 11 introduces part 1 of schedule 3, which makes the same provisions in relation to devolved Executive competence—that is, any secondary legislation that the devolved Administrations might make. In addition, provisions in the Bill extend competence to the devolved Administrations so that devolved Ministers can exercise the powers provided by clause 10 and schedule 2 to make the statute book operate effectively once we have left the EU.

In recognition of the current standing of the existing devolution settlements, part 2 of schedule 3 ensures that a significant number of corrections are made to the devolution statutes arising from the UK’s exit from the EU. Together, clause 11 and schedule 3 preserve the current scope of devolved competence. They ensure that any decision that could have been taken by the devolved Administrations and legislatures prior to exit day can still be made after exit day, and that devolved Ministers can exercise powers to make sure that law in areas of devolved competence works correctly. They set up the Order-in-Council process, which will allow for an increase in decision-making powers of the devolved institutions as discussions with the devolved Administrations on common frameworks progress. The Government have repeatedly stated, as I have today, that this is a temporary arrangement; it is a safeguard against a cliff-edge situation as we leave the EU to provide certainty for people and businesses in all parts of the UK. Just as importantly, it allows time for discussion about the future: on where common approaches are needed and where they are not. It is our overriding aim to work with the devolved Administrations to define which areas need frameworks and which do not as soon as possible.

It was absolutely right for the hon. Member for North Down (Lady Hermon) in the debate on clause 2 to raise the matter of consultation with the political parties in Northern Ireland in the absence of a power-sharing Executive. I would like to reassure her that this Government value the views of those parties on the devolution provisions in the Bill, and officials have provided briefings on the Bill to each of the parties represented in the Northern Ireland Assembly that wanted them. In addition, officials have been engaging with their counterparts in the Northern Ireland civil service on the technical and legal aspects of the Bill to make sure it operates properly in the context of Northern Ireland law. That is, of course, no substitute for a devolved Government in Northern Ireland, and my right hon. Friend the Secretary of State for Northern Ireland continues to prioritise the talks between parties to restore the power-sharing Executive. This Government are sincere in their wish to discuss these matters, particularly with regard to common frameworks, with the Northern Ireland Executive when they are restored.

I reiterate that I welcome scrutiny by the House on the approach the Government have taken. I also welcome the vital contributions that the Scottish Government and the Welsh Government, and the devolved legislatures, have made to today’s debate by publishing their views on how—

[Ian Murray]

I feel that the Minister may be finishing his remarks. I intervened at the beginning of his speech to ask whether he would tell us where he thinks clause 11 is deficient, as many of his colleagues have said it is, and how he thinks that, as the Minister responsible for it, he is going to fix those deficiencies.

[Chris Skidmore]

As I stated at the opening of my remarks, and as I will state throughout my speech and at the end of my remarks, we are open to hearing from those who seriously want to look at this Bill and consider how we productively ensure that our statute book is complete on exit day. We are in a Committee stage at the moment and there is a process to go through here, and there is a process outside this House in the JMC, which I have spoken about. It is not for me as a Minister to prejudge the discussions that may take place at JMC (EN) next week, on 12 December. What I will say is that I will ensure that when it comes to the agenda of that meeting, the discussions that have taken place in Committee are reflected and discussed in JMC (EN).

[Stephen Doughty]

I thank the Minister for what he is saying, but it is clear that the Welsh Government and the Scottish Government, and Members of this House working with them, have proposed clear and specific amendments that are not about blocking the Bill or undoing Brexit; they are about retaining a stable constitutional settlement in these islands. Will he accept those amendments, as his colleague the Secretary of State for Scotland said he might?

[Chris Skidmore]

I am discussing whether the clause should stand part of the Bill and I am about to turn to the hon. Gentleman’s amendments. I hope that he can wait in eager anticipation for my remarks and that he will not be disappointed, although he may be.

I reiterate that I welcome scrutiny by the House on the approach that the Government have taken. As I said, I also welcome the vital contributions the Scottish Government, Welsh Government and devolved legislatures have made in this debate by publishing their views on how devolution aspects of the Bill might be improved. This Government are clear that we want to consider all those views and make improvements to the Bill where we can, but I also emphasise that it is right that we provide certainty across the UK, as this clause seeks to do, and do not take any action to undermine the integrity of our United Kingdom.

I will also take a moment to reflect on the insightful contribution made by my hon. Friend the Member for Harwich and North Essex (Mr Jenkin), informed by the evidence to and input from the members of the Public Administration and Constitutional Affairs Committee. He made a number of pertinent points and I will turn to those now. He is right to say that leaving the EU is that opportunity to revisit some key constitutional questions. As I have set out today, the Government’s aim in introducing clause 11 is to do precisely that: to give us time to give these important issues the consideration they deserve.

We welcome the views of experts such as my hon. Friend and his Committee on these issues of intergovernmental institutional relationships. The Government are ensuring that we engage with other external experts such as leading academics on these questions. What we are focused on today is how we provide that certainty and continuity we need in the law on exit day and how we give ourselves time to consider the issues properly and reach the right answers. I welcome my hon. Friend’s continued contributions to this discussion.

New clause 64, which relates to the creation of common frameworks, comprise three subsections and I will take each in turn. First, the new clause would require the Government to lay their proposals for the replacement of European frameworks with UK ones before each House of Parliament. It is not the position of the UK Government, or of the devolved Administrations, that the existing UK frameworks will be replaced by our own common frameworks in every instance. Instead, we expect more power to sit directly with the devolved Administrations as a result of our leaving the EU.

As I mentioned earlier, we are working closely with the devolved Administrations to determine where future frameworks, whether legislative or non-legislative, will be required in each of the policy areas in question. Although joint conclusions have not been drawn at this point—as I have stated, I do not want to prejudice the outcome of the discussions with the devolved Administrations—we believe that the majority of policy areas will not require legislative frameworks.

[Angus Brendan MacNeil]

Surely the determination is very simple. It is set down in the Scotland Act 1998 that what is not reserved is devolved, so if it comes from Europe, it will be devolved. It is set down and it is simple. It should not be up to the Minister to be judge and jury. He talks about partnership, but he should respect the law.

[Chris Skidmore]

As I set out clearly at the beginning of my speech, when current EU law—which it is the UK’s position not to breach—is transferred to become retained EU law, we need to look at the areas where we need to create common frameworks. That is the position that the hon. Gentleman’s own Brexit Minister, Mike Russell, has taken. Mike Russell signed the communiqué and agreed to look at these common approaches and to look at retained EU law being transferred across.

The hon. Gentleman should speak to members of the Scottish Government, because they seem to understand the need to work with the UK Government to come up with common frameworks. He seems to be unaware of the process of engagement that is taking place outside the House. His constituents will not thank him for bringing up constitutional points and not acknowledging that, in looking at the common frameworks procedure and at EU law, we need to ensure that, when it comes to exit day, there is certainty, control and stability in respect of our statute book. We need to ensure that clause 11 provides for that.

Should our detailed discussions conclude that UK-wide or parallel legislation is necessary, both Houses of Parliament will of course have an important role to play in scrutinising the detailed proposals. Where policy areas are released from the temporary arrangements provided for in clause 11, the Order in Council process provides a mechanism to do precisely that to ensure that these decisions are subject to careful scrutiny by both Houses of Parliament and the relevant devolved legislatures.

Secondly, the new clause would permit the establishment of frameworks only where the criteria set out in it are met. That is also unnecessary. Although I agree with the criteria, which, as the hon. Member for Darlington (Jenny Chapman) pointed out, have been lifted by and large from the broader principles that underpin the creation of frameworks, they form only one part of the picture. The broader principles were agreed by the UK, Scottish and Welsh Governments at the meeting of the JMC (EN) on 16 October and were published in the communiqué that I have put on the record. To ensure that the interests of Northern Ireland were heard, a senior official from the Northern Ireland civil service was in attendance.

Those broader principles recognise, among other things, the importance of a wider range of issues, including

“the economic and social linkages between Northern Ireland and Ireland”.

Not only do we have an established set of detailed principles; we have put those principles into practice through a process of ongoing engagement and analysis with the devolved Administrations on where common frameworks are or are not needed. It therefore follows that the more limited set of criteria in the new clause is unnecessary.

Finally, the new clause would permit the creation of frameworks only if they were subject to consultation agreements with the affected devolved Administrations. Once again, that is unnecessary. As the agreed principles published in the communiqué make clear:

“It will be the aim of all parties to agree where there is a need for common frameworks and the content of them.”

The Government are committed to intensive discussions on the areas where common frameworks will and will not be required with the devolved Administrations, and those are happening right now. I therefore urge the hon. Member for Darlington to withdraw the new clause.

New clause 65 seeks to enshrine the Joint Ministerial Committee in legislation. The Joint Ministerial Committee is a forum for the UK Government and the devolved Administrations of Scotland, Wales and Northern Ireland to discuss matters of joint interest and is underpinned by a memorandum of understanding between the four Administrations. Specifically, it provides for a focus of intergovernmental relations and allows attending Ministers to present the positions of their own Administration in a multilateral setting. There is no need to enshrine the JMC provisions in legislation as set out in new clause 65. Indeed, doing so would place limitations on the ability of the members to adapt to what is a rapidly changing political landscape.

The current basis for the JMC has been agreed by all four Administrations and allows for wide-ranging discussions, including on topical issues such as EU exit. The JMC, as set out by the written agreements, must remain adaptable enough to address those four Governments’ interests. If this clause were to be added to the statute book, it could severely hamper the JMC’s ability to do so.

The scope of the committee and its supporting sub-committees is not solely to discuss the domestic impact of EU exit and negotiations with the EU. The JMC plenary, which is chaired by the Prime Minister, should also continue to discuss matters agreed by the Administrations as set out by the terms of reference under subsection (1) (a). As drafted, new clause 65 would significantly limit the scope of the Joint Ministerial Committee. The provisions under subsection (1) are already being demonstrated through the JMC on EU negotiations sub-committee. My right hon. Friend the First Secretary of State chaired the most recent JMC (EN) meeting on 16 October and will chair a further meeting on 12 December to build on those discussions that have taken place so far.

There are also other sub-committees that are equally important for the integrity of intergovernmental relations. The provisions under subsection (5) stipulate that either my right hon. Friend the Prime Minister or my right hon. Friend the Secretary of State for Exiting the European Union must chair all further meetings of the Joint Ministerial Committee until a withdrawal agreement is concluded. That would ignore the role of my right hon. Friend the First Secretary of State who chairs what I am sure will be recognised as an important sub-committee on EU negotiations as well as other sub-committees of the JMC that already exist, such as the sub-committee on Europe. Such provisions will remove the flexibility afforded to the Joint Ministerial Committee to adapt and evolve.

The existing written agreements coupled with the ongoing multilateral and bilateral engagement between Ministers and officials make this new clause redundant. The versatility of the committee is achieved through consensus of the participating Administrations and therefore we urge the Opposition not to press their amendment.

[Angus Brendan MacNeil]

The hon. Gentleman talked earlier about co-operation and listening. Our party represents the Government of Scotland. Then there is the party that represents the Government of Wales. In this spirit of co-operation, which amendments will he be taking from either of those parties?

[Chris Skidmore]

I am currently going through the list of amendments and setting out the Government’s position on them. When it comes to looking at the Bill, the Government will listen to those who seek to improve it constructively. We are in Committee at the moment, and we have amendments and legislative consent memorandums that have been tabled by the Welsh and the Scottish Governments. The Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker), and I have been to Scotland to give evidence. My hon. Friend has also given evidence to Welsh Select Committees. We are determined that it is not just SNP Members who have a veto over this process. There is a consensus that we need to seek across all devolved Administrations—

[Angus Brendan MacNeil]

rose—

[Chris Skidmore]

I have given way to the hon. Gentleman several times; I will not do so again.

[Angus Brendan MacNeil]

Will the Minister give way?

[Chris Skidmore]

No, I am afraid that the hon. Gentleman came in relatively late. I have given way to him several times. I am making my point in response to the amendment, which he does not even want to listen to. The point is that there is a reasonableness test: the UK Government are determined to be the reasonable partner, but we will listen to anyone who puts forward amendments to the Bill and who is determined to ensure that our statute book is protected on exit day, that the UK integral internal market is protected, and that we have that stability, certainty and control that we need for businesses and for the people of Scotland, Wales, England and Northern Ireland, as they will not thank us if we do not work together to ensure that that is achieved. The point of clause 11 is to ensure that we have that stability, certainty and control.

I now turn to amendment 337, which is to be read with amendment 42 and new clause 64. It provides that existing EU law limits on devolved competence will remain in place until the end of the transitional period. At that point, amendment 42 would give the devolved Administrations and legislatures the power to legislate in relation to those matters currently subject to EU law but that are otherwise devolved.

I will discuss amendments 90 to 92, 132 to 134 and 164, which essentially provide the same effect as that of 42, which means that the devolved institutions will be able to diverge from those retained EU law frameworks after exit day. I will also deal with consequential amendments 177 to 179, 181, 185 and 191 to 193, which flow from those substantive amendments. I understand the intention behind these amendments, but we cannot agree with the effects. I have already set out the measures in clause 11 that establish the temporary arrangement that maintains the currents parameters of devolved competence, taking no decision-making power away from the devolved Administrations or legislatures. This means that where we have common approaches across the UK by virtue of EU law, they will continue to apply as they currently do after exit day.

It is vital that we provide certainty to businesses and to people who live and work across the UK, and that laws in place remain consistent while we work with the devolved Administrations to consider where we may need common approaches and where we do not. The amendments risk undermining not only that certainty, but out precious Union. Let me be clear: this Government are committed to ensuring that power sits closer to the people than ever before. Our commitment to strengthening the devolution settlements is clear from the statute book with, most recently, the Wales Act 2017 and the Scotland Act 2016, which has made the Scottish Parliament one of the most powerful devolved Parliaments in the world.

In line with our commitment to devolution, we have been clear that we expect the process of leaving the EU to result in a significant increase in the decision-making powers of the devolved Administrations. But we are also clear about how this must happen. We need careful analysis with the devolved Administrations to determine the areas where common UK-wide or GB-wide approaches need to be retained, and the areas where they do not.

[Ian Murray]

The Minister is addressing the amendments in my name and those of my hon. Friends. The hon. Member for East Renfrewshire (Paul Masterton) said that he agreed with the principles of my amendments 164 and 165, and that, although he would not vote for them, he expected that the Government would come back with something different to deal with the deficiencies in clause 11. I have not quite heard the Minister admit that the clause has deficiencies. What will he bring back to the Committee that it can vote on that will satisfy his own Scottish Conservative Members with regard to the principles of amendments 164 and 165?

[Chris Skidmore]

I have already stated that the Government are prepared to listen to all those who seek to improve the Bill. We will use this opportunity to reflect on all the speeches made by hon. Members in Committee; that is what Committee is for. I have stated a commitment to ensuring that the content of today’s debate is shared with all members of the JMC (EN) on 12 December. There is a process to look at the establishment of common frameworks, and the careful analysis needs to take place with the consent of or working with the devolved Administrations and their officials. I am pleased that we have made good progress on this with the agreement at JMC (EN) with the Scottish and Welsh Governments on the principles that will guide our future framework discussions.

[Stephen Doughty]

The Minister is being generous in giving way. My name is on a number of these amendments. Will he be absolutely clear on one point? The Welsh Government and the Scottish Government have tabled amendments in good faith that are aimed at being constructive and making the Bill more sensible, with the support of many Members across the Committee. Indeed, Members of the Minister’s own party have pointed out problems with the Bill. Am I correct that, despite those points, he is not going to accept any of the amendments?

[Chris Skidmore]

We have always made it clear that we stand ready to listen to those who offer improvements to the Bill. Engagement at all levels of government—[Interruption.] The hon. Gentleman does not want to listen to what I have to say. He wants me to accept an amendment; I have given way several times, yet he is not prepared to listen to what the Minister has to say. Engagement at all levels of government is a usual part of the process, and this engagement must be at all levels of discussion, not just that which takes place in this Chamber. We want to work with the devolved Administrations, and we have been clear that we would like all parts of the UK to come together in support of this legislation, which is crucial for delivering the outcome of the referendum.

We continue to believe that the provisions in clause 11 are vital to providing the necessary immediate certainty to people and businesses while we discuss where common frameworks are and are not needed. We recognise that the Scottish and Welsh Governments have taken different positions from our approach, and we welcome the contribution to the debate. We remain open to suggestions and thoughts about how to ensure that the Bill works to deliver a functioning statute book for all parts of the UK. However, we cannot accept changes that would undermine the UK’s internal market or increase difficulties for people and businesses.

We are also clear how this process must happen. As I have said, we need the analyses to take place. We are clear that we will make progress with the JMC (EN), and that we will ensure that our final analysis indicates that legislative frameworks will be unnecessary for a majority of those policy areas. Following the agreement of the principles of the JMC (EN), we have already commenced work with the devolved Administrations, building on the work that is taking place at both ministerial and official level to make quick progress on the potential role for frameworks in some specific policies areas including agriculture, justice, home affairs and public health, where deep dives have taken place with officials from all Administrations. This work is allowing us to explore the different form the frameworks could take.

I should say that a legislative framework is by no means the only method. Indeed, as I said, legislative frameworks are likely to be used in a limited number of areas. There is far more use for non-legislative frameworks, including memorandums of understanding, concordats and informal collaborative working arrangements, as already happens.

In removing clause 11, these amendments fail to recognise the importance and value of our internal market and of having consistent rules for individuals and companies. They pre-empt the vital work we are undertaking with the devolved Administrations, and prejudge the outcome of our negotiations with the EU. Until we know the outcome of those negotiations, we cannot have certainty over how these powers, in places, will relate to our future relationship with the EU or, therefore, at what level they should be exercised in the future.

I note that Members have referred to evidence given to various Committees. I have heard their points, but it is important to come back to the motivation and need for the Bill: to provide certainty and control.

Sir Stephen Laws, formerly first parliamentary counsel, has pointed out that the devolution settlements were agreed in the context of our EU membership. That is why we are focusing through our discussions on common frameworks with the devolved Administrations on what our constitutional arrangements should be outside the context of our EU membership. That is what the provisions in the Bill give us the space to do, by maintaining the parameters of devolved competence.

I stress again that the mechanism here is not an end; it is an important first step in the process of returning these powers from the EU to the UK, enabling us to do the necessary work to determine where further powers can be released to the devolved Administrations.

I must reiterate that I understand the intention behind the amendments—that powers sit at the right level once we have left the EU. I am clear that the process we are going through does not change our unshakeable commitment to ensure that devolution in the UK is even further strengthened so that we may have more devolution and more union across the UK.

I turn now to amendment 165, which I will take with consequential amendments 180, 182 to 191, 194 and 195, tabled by the hon. Member for Edinburgh South (Ian Murray). Amendment 165 would allow the Scottish and Welsh Governments to make secondary legislation to change retained EU law in the areas that are currently subject to EU law. Taken together with other provisions of the Bill, part 1 of schedule 3 is intended to maintain the common frameworks across the UK that have been created by EU law. In particular, that will ensure that no new barriers to people living and doing business across the UK are created after we leave the EU.

As I have made clear, the Bill guarantees that the current decision-making powers of the devolved Administrations are respected. Anything the devolved Administrations could do before exit day they will be able to do after exit day. Our priority must now be to prepare our statute book for exit, and we want to work closely with the devolved Administrations to do that.

It is through the work on the common frameworks and the discussions with the devolved Administrations that we can make progress on specific areas and seize the opportunities to improve policy in the UK. As I mentioned earlier, the next JMC (EN) is scheduled to take place on 12 December, and it will continue that accelerated process of assessing where frameworks are needed and where they are not. We will prioritise those areas of greatest interest and significance.

We very much hope to see further steps forward, but it is right that we do these things in discussion and collaboratively with all Governments across the UK. Once it has been agreed through ongoing engagement, which this Government are committed to, where common frameworks are not required, we can use the Order in Council power to release decision-making powers to devolved Administrations. For that reason, the amendment is unnecessary, and we would urge the hon. Gentleman not to press it.

Let me turn now to amendment 72, tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), which would enshrine a requirement for the Government to seek a legislative consent motion from the devolved legislatures. As the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester, said on day one of Committee stage, we want to make a positive case in favour of legislative consent for this vital piece of legislation and to work closely with the devolved Administrations and legislatures to achieve that. As I have mentioned, there has been an extensive programme of engagement with the Scottish and Welsh Governments and legislatures. In the absence of the Executive in Northern Ireland, official level engagement also continues with the Northern Ireland civil service.

We do not recognise the need for this amendment. The Government have already explicitly recognised the role of the Sewel convention in the Wales Act 2017 and the Scotland Act 2016. I ask hon. Members to look at our track record: we are committed to the devolution settlements and the conventions that we have established.

We continue to believe in the importance of the Bill, which is in the national interest, and we will work to deliver it with the devolved Administrations. The question of ensuring certainty both for our statute book and our internal market when we leave the EU is of great significance to all parts of the UK. We would like all parts of the UK to come together in support of this legislation, which is vital to the securing of a smooth and orderly exit. I urge the hon. Member for Darlington (Jenny Chapman) to withdraw the motion.

--- Later in debate ---

[Tommy Sheppard]

I was going to reassure the hon. Member for Stirling (Stephen Kerr), who is no longer in the Chamber, that, given the lateness of the hour, I can do nothing other than be reasonable and mild mannered in my presentation. He seemed fearful that SNP Members would go berserk and worried that we were putting our case with too much passion. Let me try to put this as reasonably as I can.

I want to agree with Members who have talked about the positive cross-party nature of what is happening. There are three parties on the Opposition side of the House that differ quite significantly on our preferred constitutional outcome or endgame for Scotland, but we are united in trying to defend the gains of devolution that have been made during the past 20 years. Indeed, I think that some of the Scottish Tories might feel that way too, given the discussions we have had in the Scottish Affairs Committee. They seem too timorous to exercise that conviction by going through the Lobby with us tonight, but perhaps they will be persuaded in the fullness of time.

By way of context, we need to remember two things. One is how the interplay between the referendums of 2014 and 2016 in Scotland affects this debate. I was on the losing side in 2014—I lost the Scottish independence campaign—and I accept that result. However, it is important in understanding why Scotland voted to remain in the United Kingdom to look at some of the assurances that were given by the people who won that campaign, because that affects this debate. I am going to talk not about the obvious one, which is what was said about EU membership itself, but about two other things.

First, all parties that campaigned for a no vote in the 2014 referendum went out of their way to stress that there was no threat to the devolution settlement, and that they would defend and extend it. The other assurance given was that should Scotland vote to remain in a political Union with England, Wales and Northern Ireland, this was not a matter of one country being subsumed into a much larger neighbour, but the creation of a partnership of equals—a multinational yet unitary state—with the views of Scotland therefore respected in any future debates. I am now calling to collect from this Government on both their respect for and commitment to devolution because, as far as I can see, the way in which clause 11 is currently written means that it recognises neither of those points. It is regrettable that at this relatively advanced stage of our discussions on the Bill, we still do not have any agreement whatsoever about some basic things.

The other factor we need to remember by way of context is of course the debate about devolution itself. I was heavily involved in the campaign that led to the creation of the Scottish Parliament, arguing for yes, yes in 1997. I was not in the House when Members debated the Bill that became the Scotland Act 1998, but I observed the proceedings and we can read the transcripts. We know that Parliament, led by the late Donald Dewar, clearly took a maximalist position. It basically said that everything should be devolved unless there was a case for its not being so, which is why the 1998 Act lists not the powers that are devolved, but the powers that are reserved.

If we had not been in the European Union when Parliament was debating the Act, how many of the 111 areas of responsibility would have been reserved and how many would have been devolved to the Scottish Government? The truth is that practically all of them would have been devolved without question, because there would have been no compelling case for reserving them. I think that people misunderstand the nature of the debate when they talk about the transfer of competences from the EU to the UK following Brexit.

Let us be quite clear that the reason why the European Union currently has some legislative competence in devolved areas is to ensure compliance with the treaty on European Union. That is what this is about. If Brexit goes ahead and we come out of the European Union, that, de facto, will not be required, so whatever the UK Government say about taking on these areas of competence, it will not be about complying with the terms of the treaty on European Union. The only thing it can be about, given that we already have a single economy in the United Kingdom, is convergence on policy. The transfer raises the possibility that we will move from compliance with international agreements to compliance with domestic policy. That is what I mean by a power grab, because it represents a severe potential constraint on the ability of the Scottish Parliament to legislate and act in its devolved areas.

Ministers will say, “That’s not the intention. This is a drop-off point for the powers so that we can then decide the best way for them to go to their final resting place.” I have to say to them that we are politicians, not psychics. We have to deal with what is written in the Bill that they have brought before us, not their intentions for what might happen as they go towards their endgame. What is written in the Bill is most clearly not what is being argued for by Ministers. If that were the case, we would have a schedule by now outlining which of the 111 powers can go straight to the devolved authorities on exit day, which of them definitely need to be reserved in the context of the 1998 Act, and which of them need further exploration through some sort of process, but we have heard nothing about a single one of them.

I say to Ministers that, even from a public relations point of view, would it not have been sensible to at least chuck a few of these powers the way of the devolved Administrations? No. 9 on the list is about blood safety. What is it about the Scottish health service and blood transfusion service that they do not trust? Why on earth would blood safety need to be reserved to the UK? Energy efficiency is another power on the list. Is it the end of the world if Scotland pioneers aspects of efficient energy use and perhaps leads the way in the UK? How is that a threat to the Union? Why do Ministers need to keep those powers? There are other examples that illustrate the ridiculousness of arguing that there should be even a temporary drop-off of these powers at Westminster. Such powers should clearly go to the devolved Administrations.

I am left wondering why this is being done. The obvious first answer is the phenomenal degree of administrative competence involved. I think that there is malintent on the part of some Conservative Members, but probably not on the part of its Front Benchers. However, I think Ministers have got themselves into a situation in which, because they have been incapable of producing a plan, they simply have no option but to say, “Trust us for now; we’ll do the best thing in the end.” It is very difficult for this Parliament to accept those assurances.

I think there is another red herring with the idea that a further reason why these powers need to be retained and examined further is that there might otherwise be interference with the United Kingdom’s ability to strut the post-Brexit globe in its ambition for “Empire 2.0”. There is a fearfulness that people in Scotland or Wales might act like the Wallonians and try to frustrate the creation of an international trade agreement. How ridiculous is that? Would it really matter if the Scottish Government introduced a policy that said, “We don’t wish to have genetically modified food in our food chain”? How is that a threat to an international trade agreement? All that would need to be done would be simply to specify that that was what people would need to deal with in Scotland, and that anybody wishing to sign the agreement would, quite reasonably, be able to do so.

The only way that that could become a threat to post-Brexit deals would be if there was a suggestion that the Scottish Government and the Welsh Assembly should take to themselves a power to veto a future UK international trade agreement, but no such power is being discussed. It is ridiculous that we should not by now be discussing which powers are going where, rather than arguing that nothing can be done apart from a power grab by the Westminster Government.

Finally, the common frameworks that we need for these 111 areas are going to be entirely different, depending on the individual area. In some cases, it might just be a simple matter of agencies north and south of the border talking to each other and sharing best practice. There are probably very few areas that actually require a full-blown statutory regulatory framework across the United Kingdom.

[Chris Skidmore]

indicated assent.

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

indicated assent.